The Good Mother – Mothering, Feminism, Incarceration
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![“THE GOOD MOTHER"": MOTHERING, FEMINISM, AND INCARCERATION DESERIEE A. KENNEDY" ABSTRACT As the rates of incarceration continue torise, women are increas- ingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights.* The inter- section of an increasingly carceral state and federally imposed time- lines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. ‘Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children.’ In| addition, incarcerated women have higher rates of substance abuse, do- mestic violence, and childhood and domestic abuse that make it more difficult for them to comply with federal and state standards for re- taining their parental rights. Incarcerated mothers must also strug- gle against stereotypes of mothers and effective mothering which may. be at play in parental termination decisions. This article suggests that feminists need to look more closely at these issues and proposes changes to arrest, sentencing, and parental rights hearings that would help incarcerated women maintain their connection with their children and preserve their parental rights. The article suggests a community- based approach to caring for the children of incarcerated women that would help empower women and their communities. INTRODUCTION I WOMEN, CRIME, & THE CRISIS IN FAMILIES 1L BARRIERS T0 PRESERVING FAMILY UNITY IN FAMILIES WITH AN INCARCERATED MOTHER 1. SUE MILLER, THE GooD MOTHER (1956) * Professor of Law, Touro College, Jacob D. Fuchsberg Law Center. The author would like to thank Touro Law Conter for its support and her roscarch assistants, Paulina Rezler and Jesscka Green, for their outstanding assistance. 2 See, e, State Dopit of Children’s Servs. v. V.N, 279 S W.3d 806, 323 (Tenn. CL. App. 2008) (noting the loss of parental rights for the potitioner). 3. LAUREN E. GLAZE & LAURA M. MARUSCHAK, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: PARENTS IN PRISON AND THEIR MINOR CHILDIEX ’1(2008), available at http:/bjs.ojp usdo] govicontent/publpdUpptme.pdf. 41 ot 161](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 1.png)
![162 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161 111 DEVELOPING A CRITICAL RACE FEMINIST APPROACH T0 RESOLV- ING THE TENSION BETWEEN PRESERVING PARENTAL RIGHTS AND ENSURING THE BEST INTERESTS OF THE CHILDREN CONCLUSION INTRODUCTION On August 22, 2007, when Omarian was four years old, the Com- missioner of Children and Families filed a petition seeking the termi- nation of the parental rights of Omarian’s mother, Caliphah.* Caliphah was thirty-four years old and had a record with the Department of Children and Services that included shoplifting with her children and domestic violence.* When Omarian was about two years old, Caliphah was sentenced to four years in federal prison for forgery, criminal impersonation, larceny and illegal entry into the United States.’ Caliphah placed Omarian with his aunt, but after concerns about the quality of his care, the State removed Omarian and placed him with foster parents.’ Caliphah maintained her desire that Omarian be raised by her relatives until she could regain custody of him upon her release, but the court determined that she failed to maintain suffi- cient ties to her son.” Despite testimony from Caliphah asking that her ties not be severed and stating that his Aunt was willing to care for the child, the court found that Caliphaly’s parental rights should be terminated." The Court was persuaded by four-year-old Omarians unwillingness to visit his mother in prison or the siblings he barely knew and found that Caliphah had “abandoned” Omarian by failing to maintain consistent contact with him while in federal prison.” The court stated that Caliphah ‘has not provided financial support to the child and has not main- tained consistent visitation and contact with [Omarian] There was no evidence that the mother sent cards, gifts or letters 5. In re Omarian R., No. H14CPOGO0S6142, 2008 Conn. Super. Ct. LEXIS 1427, at “1 (Conn. Super. Ct. June 2, 2008). The Connecticut statute at issue in the case allows. the termination of parental rights based on a finding of sbandonment. According to the court, court may find abandonment if a parent "failed to maintain a reasonable dogree of interest, concern or responsibility s to the welfare of the child” d. at “21 citing CON. ‘GEN.STAT. § 17a-112)(3)(A) (201). “Indicia of intercst, concern and rosponsibiliy in- elude [a]ttempts to achiovo contact with a child, tlephone call, the sonding of cards and gifts, and financial support . Id. at *21-23. Id.at s, I at 5. at*9-10. 1d at *14, 3 I re Omarian R., 2008 Conn. Super. Ct. LEXIS 1427, at *10-11, 19, *22-23,](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 2.png)
![2012] “THE GOOD MOTHER" 163 tothe child or participated in the child’s education or shown [sic] an interest in his health or welfare. The mother has not provided a domicile for the child, did not provide food, medical shelter or clothing for the child, nor offered a specific plan to provide those basic necessities for her son.’” Caliphah, who was scheduled to be released from prison one year later, faced the loss of her child and deportation." Caliphah’s story is strikingly similar to the vastly increasing numbers of women and mothers in prison who frequently are faced with challenges to their parental rights while in prison.™ Women, and in particular poor women and women of color, are uniquely and disproportionately affected by the intersection of crim.- inal policies that rely heavily on incarceration and child welfare policies designed to achieve permanence for children in state care.” “The number of women who are under criminal supervision has grown dramatically over the last twenty years." These women are often more likely to have been the primary caretakers of their children prior to incarceration than incarcerated fathers.” Unlike male prisoners with children, who can often rely on the child’s mother to continue to care 12, 1d.at 23 18, Id. ot *16-17. 14, See, e State Dopit of Children’s Serva. v. V.N, 279 SW.3d 806, 323 (Tenn. CL. App. 3008) (afirming termination of parental rights of incarcerated mother and remand. ing for clleetion of costs assessed against the mother). 15. TRACY L. SNELL, U_S. DEF’T OF JUSTICE, BURFAU OF JUSTICE STATISTICS SPECIAL REPORT: WOMEN IN PRIEON 6 (1994), available at http/bjs.ojp.usdoj govicontent/publpd! /WOPRIS PDF (inding an incarcerated woman of color more Likely to be a mother with o minor child than white women), 16. NELLBERNSTEIN, ALL ALONEIN THE WORLD: CHILDREN OF THE INCARCERATED 33 (2005) (nding women o he the fastest-growing prison population); GLVZE& MARUSCHAR, supra note 3, at 3 ({Plarents in prison had nearly 19 million children . . 7) CHRISTOPHER.J. MUNOLA, U S. DEP OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: INCARCERATED PARENTS AND THER CHILDREN 1 (2000), available at hitpi/bis ojp.usdoj govicontent/pub/pdTipte pdf (fnding an increase of 500,000 from 1991 to 1999); Katherine P. Luke, Mitigating the 11l Effects of Maternal Incarceration on Women in Prison and Their Children, 1 CHILD WELFARE 929, 93132 (2002) ({1 Incarceration rates of women have risen by moro than 400% in the past 20 years.”); Jeromy Travis, Families and Children, 69 FED_ PROBATION 31, 33 (2005) (‘Between 1991 and 2000, the number of incarcerated mothers increased by 87 porcent, compared with s 60 percont increaso n the. number ofincarcerated fathers.); Erica D. Bonites, Comment, In Defense of the Family: An Argument for Maintaining the Parenial Rightsof Incarcerated Women in Texas, 3 SCHOLAR 193, 194(2001) (analyzing Texas parental erminations based on parental incarceration). One study found that three-quarters of all women i prison were mothers, most o whom had experienced physical o sexual abuse before imprisonment, committed a drugoffense, were in prison for a non-violent offense, andlor committed their crime under the in. fluence of drugs or alcohol. SNELL, supra note 15, at 1,5. 17 Mothers in prison are far moro likely than men in prison o roport having lived with their children before incarceration. In addition, mothers were more often a single parent. See GLAZE & MARUSCHAK, supra note 3, at 4, 5.](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 3.png)
![164 WILLLAM & MARY JOURNAL OF WOMEN ANDTHELAW [Vol. 18:161 for the child and foster communication between the father and the child during incarceration, incarcerated mothers more often must rely on extended family or the state to care for their children while incarcerated. In addition, these women and their families are fre- quently dealing with socioeconomicstresses, addiction, and histories of abuse, at higher rates than male prisoners.” Frequently there are insufficient resources to address these problems and to assist these women in keeping their families together.”” The dearth of resources ata familial or community level and the need to depend on state as- sistance to provide childeare for their children prior to, during, and after their incarceration make incarcerated women extremely vul- nerable to having their parental rights permanently severed during their incarceration.” 18, Bonites, supra note 16, at 218-19. 16, GLAZE & MARUSCHAK, supra note 3, at 7 (*Mothers in state prison [are] more likely than fathers to report homelessness, past physical or sexual abuse, and medical and mental health problems.). 20. See, ... In re Gurynne P., 830 N.E 24 508, 520 (1. 2005) (finding an incarcerated. mother unfit bucatise of drug, alcohol use, and incarceration): Ellen M. Weber, Bridging the Barriers: Public Health Sirategies for Expanding Drug Treatment in Comminities, 51 RUTGERS L. REV. 631, 64445 (2005) (deseribing inadequacy of state and local resources for drug addicts). 21. Seo Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96272, § 471, 94Stat 500 (1980). In addition, some estimate that 34 states hav statutes that includ. parentalincarceration as.a factor in terminating parental rights. See BERNSTEIN, supra note. 16, at 150. The following statutes allow courts to consider incarcoration oF conviction as a factor tobo considered in parental termination proceedings: ALA. CODE§ 12-15-319(a)(4) (LexisNexis 2010); ALASKA STAT. §§ 47.10.011(2), 47.10.088 (2010); ARIZ REY. STAT. § 5 533(B)(4) (LexisNoxis 2010); ARK. CODE. ANN. § 9-27-341(6))(b)(vii) 2011); CAL FAM CODE§ 7825 (Deering 2010 CoLo. REV. STAT.§ 19-1-604(1)bNI) (2010 DEL CODEANN E13,§ 1103(@)(5)@)(3) (2011; D.C.CoDE §§ 16-2353, 16-2354(:)3)(C) (LexisNesis 2010 FLA STAT. ANN. § 39.806(2)(d) (LexisNexis 2010): GA. CODEANN. § 15-11-94(h)(4)(B) i) (2011); IpAHO CoDE ANN. § 16-2005(1)(e) (2010 705 ILL COMP. STAT. ANN. 405/1-2 (Lexis Nexis 2011); 750 ILL. COMP. STAT. ANN. 50/1(D)r) (LexisNexis 2011); IND. CoDE. §31.94.21.5.6(5)(3) (LoxisNexis 2011); KAN. STAT.ANN. §§ 18-2269(1)(3), 38-2271 (2010); K. REV_STAT. ANN.§ 600.020(2)(5) (LexisNexis 2010y La. CHILD. CODEANN.art. 1015(6) (2010); ME. REV. STAT.tit. 22, § 1055 (2010): MD. CODE ANN. FAM. Law § 5-525.1(6) (1)) (LexisNeoxis 2010): MASS. ANN. Lawsch. 119,§ 26(c) (LexisNoxis 2011): MASS. ANN. LaWS ch. 210, § 3(e)xii) (LoxisNexis 2011); MICH. CoMP. LAWS § 7124 19b(3(h) (2010) M CODEAN. § 93-15-103(3)() (2010) (as interpreted in Vance . Lincoln Cty. Dep’.of Pub. Welfare, 582 So. 2d 414, 418 (Miss. 1991) (Imprisonment, and the rosulting conditions, canbe rightfully considered as a significant factor whon determining whether rights may o terminated.); Mo. REV. STAT. § 211,447 (7)(6) (2010); MONT. CODE ANN. §§ 11-3-423, 41:3.609(1)(¢) (2010): NEB REV. STAT. ANN. § 43.292(10)-(11) (LexisNexis 2010); NEV. REy. STAT.ANN.§§ 128,105, 128.106(6), 432B.393 (LexisNexis 2010); N.J STAT. ANN. §§ 30:1C- 11.2(0)2), 30:4C-15 (West 2010) N.C. GEN. STAT. § TB-1111(a)E) (2010); N.D. CENT. ConE. §527.20.02(3)(), 27-20-44 (2010); OF10 REV. CODE ANN. § 2151.414(E) (13) (LexisNexis 2010); OKLA. STAT. tit. 104, § 1-4:904(12) 2010): OR. REV. STAT. § 419B.504(6) (2010); 23 PA CoNS_ STAT.§ 2511(@)(9) (2010); P-R_ LAWS ANN. tit 31, §§ 634a(). 634b (2010); RLL GEN. LAWS § 15-7-7(2)(2)() (2010); S D. CODIFIED LaWs §§ 26-8A-26.1(4), 26-8A-27 (2010); TENN. CODE ANN. § 36-1-113(1)(A) (2010); TEX. Fax. CoDE ANN. §§ 161.001(Q),](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 4.png)
![2012] “THE GOOD MOTHER" 165 Mothers with limited family resources for childcare and assistance are most at risk for having their children enter state care either prior toor during their incarceration. ® Once a child is in foster care, federal laws which limit the period of time a child may be in foster care propel a state to move to terminate the parental rights of an incarcerated parent under a federally mandated time-line.”” In this way, federal and state law and policy intersect to place families of incarcerated mothers and their communities in erisis by making the families vul- nerable to parental termination.** The issue of how to balance the need of the children for stable caring communities and the parental rights of incarcerated women remains unresolved. In fact, terminations of parental rights of women who have come into contact with the crimi- nal justice system have increased dramatically since 1991 Yet, this risein terminations has not resulted in a comprehensive and system- atic governmental response to assist these families.** Nor has there been a corresponding increase in adoptions for these children.” The 161.002(6), 161.007 (West 2010); UTal CODE AXN. §§ T8A-6-507, TBA-6-508(2)(0) (Lexis: Nexis 2010); VI STAT. ANN. tit. 154, § 3-504(a)(3) (2010); VA, CODE ANN. § 16.1-283(E) (2010): WaSH. REV. CoDEANN. §§ 13.34.132(4), 13.34.180 (LoxisNexis 2010): W.VA. CoDE. ANN. § 49-6-50(a)(3) (LoxisNexis 2010): Wy0. STAT. ANN. § 14-2-809(2)(4) (2010);sec also Philip M. Genty, Damage to Faily Relationships as a Callateral Consequence of Parental Incarceration, 30 FORDHAM URS L.J. 1671, 1678 (2008) (noting an increase in parental rights tormination procoedings for prisoncrs) 22, JEFFIEY H. REIMAN, THE RICH GET RICHER ANDTHE POOR GET PRISON: IDEOLOGY, (CLASS, AND CRIMINAL JUSTICE 78 (24 cd. 1984) (‘For the same eriminal behavior, the poor. are more likely to bo arrested; if arrestod, they are moro likely to be charged: i charged, more likely to be convieted; if convicted, more likely to be sentonced to prison; and if sentenced, more likely to bo given longer prison torms than members of the middlo and upper classes” citation omitted)); Luke, supra note 16, at 931; Julio Poohlmann, Children of Incarcerated Mothers and Fathers, 24 WIs. J.L. GENDER & SocY 331, 333 (2009). 23. Adoption and Safe Families Actof 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997) (a5 amended in scattored sections of 42 U.S.C. (1997): see also Mariely Downey, Losing. More than Time: Incarcerated Mothers and the Adoption and Safe Familics Act of 1997, 9 BUPR. WOMEN’S L.J. 41, 44 (2000-2001); Catherine J. Ross, The Tyranny of Time: Valnerable Children, “Bad” Mothers, and Statutory Deadlines in Parental Termination Proceedings, 11 VA.J. S0C. POLY & L. 176, 177 n.2.(2004) 24. A fow states have responded to the growing crisis by extending the period of time. in which a child may be in stato care bofore triggoring the ASFA deadlines. New York recently amended its parental termination statutes to provide incascerated parents with additional time to met child wellaro standards See infra noto 225 and accompanying text. ‘While it i too soan to assess the impact of this legislation, without more, it ikely fails to g0 far enough to address the underlying substantive issues these families are facing 25. PATRICIA . ALLARD & LYNN D. LU, REBUILDING FAMILIES, RECLAINING LIVES 3 (200), availableat bty www poliyarchive rg/handle/ 1020 7bitstroams/ST04. pdf (inding tormination of parental rights of incarcerated parents increased). 26, See Deserice A. Kennedy, Children, Parents & the State: The Construction of a New Family Ideology, 26 BERKELEY J. GENDER L. & JUST. 78, 81 (2011). 27. Marilyn C. Moses, Correlating Incarcerated Mothers, Foster Care, and Mother- Child Reunification, CORRECTIONS TODAY, Oct. 2006, at 98, 98 (*Perhaps most notable is that children of incarcerated mothers were fou times mare likely to be still i oster](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 5.png)
![166 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161 children of incarcerated parents are more likely than other foster care children not to be adopted and to linger in foster care.” Whether criminal justice and child welfare policies that lead to these results are adequately serving the needs of these families and communities is & question with which feminists should be deeply concerned. The dismantling of these families and communities through the operation of a series of laws and policies should be seen as a call to action for feminists interested in dismantling stereotypes about women, moth- ering, race, and poverty. The current approach to parental terminations and incarcerated mothers stems in part from an idealization of motherhood at play in the application of state parental termination standards and federally imposed timelines for families with a child in state care.” The current approach to parental terminations is based on a traditional notion of mothering that idealizes a nuclear family model and that lays primary responsibility for the family’s functioning with the mother.”” At the same time, it demonizes mothers who, unable to provide direct care on their own for a multitude of reasons, need to craft a web of support to assist them to care for their children.” Current approaches to arrest, incarceration, parental rights, and child welfare, are critical of moth- ers who fall short of a mothering ideal and who need help to fulfill their roles as mothers.™ A critical race feminist approach to the ter- mination of parental rights for incarcerated mothers would make visible the numerous social, legal, and political barriers that coalesce to place an unfair burden on incarcerated mothers. Illuminating the web of stereotypes, institutional disconnects, and economic and com- munity realities reveals that terminating parental rights of incarcer- ated mothers does not resolve the crises in families and communities hardest hit by the continuing focus on incarceration as a response to non-violent erimes.* In addition, severing legal ties between parent and child is simply one more aspect of the current retribution model caro than all ather children. Those children lingorin foster care untilthoy are 18 when they ‘age out of the system”); Diano H. Schotky et al, Parents Who Fail: A Study of 51 Cases of Termination of Parental Rights, 18 J. Av. ACAD. CHILD PSYCHLXTRY 366, 367 (1979) ([S]tudios have shown that once a child is placed in foster care, he or she has a 50% chance of semaining thero 3 years or longer. Some studies even suggest that a child who has beon in foster care for longer than 18 months has a remote chance of being either adopted or returned home”(internal citations omitted). 28. Moscs, supra note 27, at 95; Schotky ot al., supra note 27, at 367. 29. Ross, supra note 23, at 18788 30. 1d. 31, Sec, 8. In re Omarian R, No. H14CPOS00S614A, 2008 Conn. Super. Ct. LEXIS 1427, at *34-38 (Conn. Super. CL June 2, 2008) (torminating the parental rights of a mother who could not socure support for her son during her incarceration). 32. Kennedy, supra note 26, at 80. 331,](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 6.png)
![2012] “THE GOOD MOTHER" 167 of incarceration that disproportionately affects women and people of color and removes children not only from their families but from their communities.* ‘This article argues for an examination of the intersection of crim- inal justice and child welfare policies from a feminist perspective in order to help support incarcerated mothers and all women who struggle to expand the notion of motherhood to be more inclusive. It suggests that a parental rights approach to parental terminations ‘would operate to empower incarcerated women and their communities by emphasizing the need to provide adequate long term care for their children within their own communities without severing the parent- child relationship. Part I of the article explores the impact of criminal justice policies on families, Part II examines the barriers to preserving Tamilies created by federal and state laws and policies and Part 11T suggests a critical race feminist approach to resolving the tension be- fween preserving parental rights and ensuring the best interests of the child that focuses on the need for community-centered solutions to the current rise in parental terminations. L. WOMEN, CRIME, & THE CRISIS IN FAMILIES Theinvoluntary termination of parental rights of prisoners should be viewed as a gendered and political act with community-wide rami- fications.® In assessing the appropriateness of state intervention into families with incarcerated parents, it is important to be realistic about the political and economic circumstances of women who commit crimes and the difficulties they may face raising their families both prior to and during their incarceration.* In order to effectively serve the needs of poor families, child welfare law and policies should ac- knowledge the impact on women and their families of the war on crime, mandatory sentencing, and an over-reliance on incarceration as a re- sponse to drug crimes and substance abuse.” The heavy reliance on 34, Id_at 113, 35. LErTH MULLINGS, ON OUR OWN TERAS: RACE, CLASS, AND GENDER IN THE LIVES OF AFRICAN AMERICAN WOMEN 93 (1997) (noting that rosidents of Contral Harlem ex- pressed concorn about losing the community’s children) 36. Kathi J. Kempor & Froderick P. Rivara, Parents in Jail, 2 PEDIATRICS 261, 262 (1993) (examining the demographics of incarcerated parents). 7. Joyee A. Avditti, Locked Doors and Glass Walls: Family Visiting at a Local Jail, 8. 0F LoSS & TRAUMA 115, 115 (2003) (emphasizing the challongos of harsh criminal ‘sanctions for nonviolent offenders): Holly Foster & John Hagan, The Mass Incarceration of Parents in Americas Issues of Race/Ethnicity, Collateral Damage to Children, and Prisoner Reentry, 623 ANNALS AM. ACAD. POL. & Soc. SC1. 179, 190 (2009) (noting the im. pactofa igh roliance on mass incarceration in rosponse tocrime in the United States):](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 7.png)
![2012] “THE GOOD MOTHER" 169 prison increased 122 percent* while the increase for fathers during the same period was seventy-six percent.* Current parental termination statutes that apply gender neutral standards of fitness and connect incarceration with fitness ignore the reality that women often have gendered and class-based causes for their imprisonment.** The types of crimes that women commit, according to criminal justice experts, may be intricately related to women’s overall economic and political position in society. Incarcer- ated women are more likely to be women of color, young, poor, less educated and largely unskilled.® Mothers in prison are often deal- ing with addiction and report higher rates of substance abuse than incarcerated men.* Incarcerated women are also more likely than imprisoned fathers to e struggling with mental health issues.’* Wom- enin prison report significantly higher incidences of child abuse and domestic violence as compared to men.’ Typically, the available services are insufficient to meet the needs of these populations.™ ‘Women in prison and their families ave more adversely affected by the lack of services for alcohol and substance abuse, mental illness, and childhood and domestic abuse. Imprisoned mothers are less likely to present a danger to their children or society.” Studies suggest that while some inmate parents 42, GLAZE & MARUSCHAK, supra note 3, at 2. e 41 Bumi K. Lee, An Overuiew of Special Populations in California Prisons, T HAST. RACE & POv. L.J. 223, 239 (2010) 45 MUMOLA, supra note 16, at 6 tbl. 7; Ann B. Loper, How Do Mothers in Prison Differ from Non-Mothers, 15 CHILD & FAM. STUD. 83, 92 (2006) (assorting the possibility that incarcorated mothers “drug activity was motivated by a need to find funds to support the children”); Luke, supra note 16, at 931 (‘Many experts in criminal justice assert that the erime committed by women is directly related to their disadvantaged economic po- sition in society ... ") Travis, supra note 16, at 32 46 Phyllis Jo Baunach, You Can’ Be o Mother and Be in Prison . . Can You! Impacts of the Mother-Child Separation, in THE CRIMINAL JUSTICE SYSTEM AND WOMEN 155, 156 (Barbara Raffel Price & Natalio J. Sokoloff eds., 1982); Roslyn Muraskin, Feminist Theories: Are They Needed?, in 11’s A CRIME: WOMEN & JUSTICE, supra note 40, at 31, 39, 47, JESSICAMEYERSON ET AL, CHILDHOOD DISRUPTED: UNDERSTANDING THE FEATURES. AND EFFECTS OF MATERNAL INCARCERATION 7 (2010), available at hetpjwwww von.org IChildhood-Disrupted-Report (2010) (fnding that 91% of incarcerated mothers who par- ticipated in the study reported a history of substance abuse). Childhood Disrupted isa qual- itative study of families affected by maternal incarcoration conducted by Volunteers of America, a nonprofit, faith based organization, and Wilder Research. Id. 48 T a1, 49, MeGee et al, supra note 40, at 515 ({A] large number of [respondents] roported. having been physically or sexually abused bofore their incarceration (10%) ..-). 0. Wober, supra note 20, at 64445, 1. Kemper & Rivara, supra note 36, at 262 tbl. 3 (noting types of crimes typically committed by incarcerated mothers)](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 9.png)
![170 WILLLAM & MARY JOURNAL OF WOMEN ANDTHELAW [Vol. 18:161 commit violent crimes, the majority, like Caliphah, were incarcer- ated for non-violent offenses. Professor Katherine P. Luke maintains that, “[w]omen are more often convicted of low-level drug offenses than men.”* Comparatively few incarcerated women are in prison for crimes involving violence, sexual misconduct, or family-related abuse.** Mothers in prison are less likely to have committed a vio- lent erime than other prisoners and more likely to have committed drug and property crimes than non-mothers.** Based on the higher rates of poverty, their status as single parents, and the high per- centage of inmate women who are domestic abuse survivors, it is very likely that their crimes may be related to the stress of raising children, providing for their families, and merely surviving* The ma- jority of these women—some estimate seventy percent—are mothers of two or three children, most of whom are under the age of thir- teen.”” These women are also single parents and typically were the primary caretakers for their children prior to being arrested.* 52. Inre Omarian R., No. H14CPOG00SG 144, 2008 Conn. Super. Ct. LEXIS 1427t %9 (Conn. Super. Ct. June 2, 2008) (discussing Caliphalvs arrests for larceny, welfaro fraud, and re-entering the United States after deportation); Leslie Acoca & Myrna S, Raeder, Severing Family Ties: The Plight of Nonviolent Female Offenders and Their Children, 11 STAN. L. & POL’Y REV. 183, 185 (1999); Komper & Rivara, supra noto 36, at 262 bl 3 (providing the statistis for types of crims committed by incarcerated mothers): Luke, supra note 16, at 931 (Most incarcerated mothers are in prison for crimes unelated to their parenting.” (citation omitted)). 50. Luke, supra note 16, at 931 (‘Many in the criminal justice field have suggested that the aggressive war on drugs and the subsequent mandatory minimum drug sen tencing laws are the primary reasons that the rate of female incarceration i increasing at a rate twice that of mal incarcoration.”); see also MUNOLA,supra note 16, at 5; SNELL supra note 15, at 3 thl. 2. 54. Kempor & Rivara, supra note 36, at 262 th1. 3. Itis also suggested that thero s a probable link betweon recidivist parents and increased potential for family violence. Id at 263, 55. Travis, supra noto 16, at 83 (Nearly half (46 percont) of incarcorated fathers were imprisoned for u violont erime, 1s wero one-quarter (26 percent) of the mothers. Nearly one-third of the mothers reported committing their crime to got cither drugs or money for drugs ...). 56. Loper,supra note 45, at 92 Luke, supra note 16, at 931; Muraskin, supra note 46, at 39 (examining various fominist theorics about women and crime). 57. Baunach, supra note 46, at 156; Garry L. Landreth & Alan F. Lobaugh, Filial Therapy with Incarcerated Fathers: Effects on Parental Acceptance of Child, Parental Stress, and Child Adjustment, 76.J. COUNSELING & DEY. 157, 157 (1998). The articulated. estimates of the percentage of incarcerated women with childven varics. See Luke, supra note 16, at 932 (placing the number of incarcorated mothers at 75-80% of incarcerated women):; Lynn Samets, Children of Incarcerated Women, 25 Soc. WORK 298, 298 (1980) (reporting the number of incarcerated women as anywhere from 42% o 80%). 58, Baunach, supra note 46, at 156; Luke, supra note 16, at 930 (’ Women who bocomo incarcerated are usually poorly educated single mothers from communitios of color who are living in poverty and strugeling to be the sole financial and emotional providers for their childron.):; Travis, supra note 16, at 32-33](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 10.png)
![2012] “THE GOOD MOTHER" 171 For many women, a prison sentence creates a serious childcare gap.” The separation due to incarceration results more often in the need for non-parental care for the child since mothers tend to be the childs primary caretaker.” While most of the mothers will be able to arrange childcare by a relative or friend, a significant minority of children end up in state care either as a result of parental behaviors that preceded incarceration or as a result of the incarceration.” Children and families affected by maternal incarceration receive little consistent formal assistance in providing care for the children, facilitating a relationship between mother and child, or preparing mothers for their release and successful reintegration into their communities.” As a result of these and other factors, women are uniquely at risk of having their ties to their children permanently severed, and women of color and poor women are in the greatest, danger.* Incarcerated mothers are not necessarily unfit, uncaring, neglectful or abusive. Yet the predominant approach to dealing with incarcerated mothers and their families is to treat these women as if their convictions are proof of their unsuitability as parents and evidence of the right of the state to intervene in their families.® The impact of criminal justice and child welfare policies on women is just another way in which women are adversely affected 59, See Baunach, supra note 46, at 156. 60. Luke, supra note 16, at 934; Travis, supra note 16, at 33 (‘Close to two-thirds (64 percent) of mothers reported living with their children beforo incarceration, compared. with slightly loss than half (41 percont) of fathers in 1997, 61, ZELMA WESTON HENKIQUES, INPRISONED MOTHERS AND THEIR CHILDREN 61 (1982): MUMOLA, supra note 16, at 1 (roporing figures for parents incarcerated in state. prison); TIMOTHY ROSS ET AL, VERA INST. OF JUSTICE, HARD DATA ON HARD TIMES: AN EMPIRICAL ANALYSIS OF MATERNAL INCARCERATION, FOSTER CARE, AND VISITATION 6 (2004, available at http:iwww.vera.orgldownload?fle=123/Hard%3Bdata pd; sce also BRENDA G. MCGOWAN & KAREN L. BLUMENTHAL, WHY PUNISH THE CHILDREN? A STUDY OF (CHILDREN OF WOMEN PRISONERS 56 tbL. 1 (1978); Ellen Barry, Legal Issues for Prisoners with Children, in CHILDREN OF INCARCERATED PARENTS 147, 148 (Katherine Gabel & Denise dohnston eds., 1995); Block & Potthast, supra note 41, at 562 Lanette P. Dalley, Imprisoned Mothers and Thair Children: Their Often Conflicting Legal Rights, 22 HAMLINE J.PUB.L. & POL’Y 1, 16 (2000); Sally Day, Mothers in Prison: How the Adoption and Safe Families Actof 1997 Threatens Parcntal Rights, 20 WIS, WOMENL.J. 217, 226 (2005). But e Moscs, supra note 27, at 98 (rovealing that in the majority of cases, in a study of in- carcorated women in Illinois, reviowed children were placed in foster care prior to the mother’s first period of incarceration). 62, MEYERSON ET AL supra note 47, at 1. 63, It is important to note, however, that the studios associate recidivism with in. ereased potential for family violence. Kompor & Rivara, supra note 36, at 263 thl. 3. 64. For example, despito the public and media attention paid to mothers who kill their childron, the reality is that most imprisoned mothers are not incarcerated for harming their children and statistics show that less than one percent of homicides committed by femalos involve children less than thirteen years. Loper, supra note 45, at 92 65. Luke, supra note 16, at 935.](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 11.png)
![2012] “THE GOOD MOTHER" 173 inprison with a minor child reported having a child in a foster care sys- tem. As primary caregivers, women are more frequently faced with having theirchildren placed in foster care than men, and that number hasbeen increasing over time.” Even when extended family is avail- able to help care for these children, the family may be too stressed by, economic and other factors to provide adequate care without signifi- cant state assistance.”” Many children, like Omarian, are placed with relatives when their mother is incarcerated.” However, much like in Omarian’s case, alarge percentage of these children eventually end up in state care.” This breach in familial support is primarily an issue for women rather than men (poor women rather than the well-off) and can be exaggerated by substance abuse problems, a history of child or do- mestic abuse, and mental illness.” One recent study of incarcerated women in Illinois found that the majority of women had a child in state care prior to the woman’s imprisonment.® The reliance on foster care prior to incarceration may be related to behaviors and conditions that eventually led to the arrest and incarceration of the mother. Be- haviors such as drug use and illegal behaviors which may be related tothe underlying causes of these women’s incarceration may have led to their children entering foster care some time prior to the women’s incarceration.” The child welfare system is ill-equipped to deal with 70, GLAZE & MARUSCHAK, supra note 3, at 5 see also MUMOLA, supra note 16, at 4. 71, Beckerman, supra note 41, at 10; see Dalley, supra note 61, at 14 (noting that when mothers are incarcerated children often end up in foster care). 72. Joremy Travis et al Families Left Behind: The Hidden Costs o Incarceration and. Reentry, URBAN INST. JUSTICE POLICY CTR. (Juno 2008), http/iwwo urban orgluplondedpdf 1310882 families_left_bohind.pdf; sce also BERNSTEIN, supra note 16, at 144; MUMOLA, stpra note 16, at 1 (reporting figures for parents incarcerated in state prison); Bary, supra note 61, at 148; Beckerman, supra note 41, at 10; Block & Potthast, supra 41, al 561; Day, supra note 61, at 226; Ross, supra note 23, at 6. 73, In ro Omarian R No. H14CPOG00S6144, 2008 Conn. Super. Ct. LEXIS 1427, at (Conn. Super. Ct. Jure 2, 2008); e also State Dep’tof Children’s Servs. v. V.N., 279 .84 306, 307 (Tonn. Ct. App. 2008) (stating that the grandmother had custody of the. minor child while the mother was in prison, the child was placed with an Aunt when the grandmother was jailed on a DUI charge, and the child was placed in state care when the aunt was arrested for a DUD; Block & Potthast, supra note 41, at 562. 74, See BERNSTEI, supra note 16, at 144; MUMOLA, supra note 16, at 1 (reporting figures for parents incarcerated in state prison); Barry, supra note 61, at 148; Beckerman, supra note 41, at 10; Block & Potthast, supra note 41, at 562; Day, supra note 61, at 226; Loper, supra note 43, at 91; Ros, supra note 23, at 6. 75. Angola Wolf ot al, The Incarceration of Women in California, 13 U F. L RY. 139, 14243 (2008). 76, Moses, supra note 27, at 95. 77, Mary Barr, The Faceless Offender: The Effects of Incarceration on Families, Women, and Minoritiesin 2 ATLA 2001 ANNUAL CONVENTION REFERENCE MATERIALS 2071 (Assn of Trial Lawyers of Am. od, 2001), available at Westlaw ATLA-CLE (stating that 85% of incarcrated women are non-violent drug offenders); Woll et al, supra note 75,](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 13.png)
![2012] “THE GOOD MOTHER" 175 removal of the child out of the home and into foster care.”” Children who are out of the home and in foster care for fifteen of the last twenty-two months must be moved toward permanency, and the ASFA requires states, with some exceptions, to file petitions to terminate parental rights.** State agencies are required to make “reasonable efforts” to reunite families and to maintain family ties *” However, what constitutes “reasonable efforts” is left up to the states and in- dividual state agencies to define.* A number of researchers have been eritical of the “reunification” efforts of state social welfare agen- cies and suggest a lack of sufficient and consistent effort to reunite troubled families.* These concerns are magnified in families in which the separation between parent and child is a result of a parent’s incar- ceration. Far too frequently, there is insufficient support for parents who, because of their incarceration, are unable to follow a perma- nency plan put in place for them by case workers. While the ASFA may have been motivated by good intentions to benefit children, the intersection of federal and state law may be re- sponsible for the significant increase in the termination of parental rightsof incarcerated mothers.” A significant number of states permit 5. 1d. § 302. The Act also “awarded states $4,000 per adoption in excess of the stato’s average numberof adoptions prior 0 1997." Will L. Crossley, Defining Reasonable Eforts: Demystifying the State’s Burden Under Federal Child Protection Legislation, 12.B.U. PUR, INT. L1 259, 278 (2009) 6. Adoption and Safe Families Act § 103; Crossloy, supranoto 85, at 27879 (‘A state can bo excused from this obligation if: () the state has placed the child in the care of relative; (2) the state can provide a compolling reason for maintaining the parental relationship; or (3) the state has failed to provide reasonable efforts to reunite the family.” (citation omitted)). Crossley eritiques the “reasonable cfforts” exception of the. ASFA as “a hollow requirement” since it “stresses terminating parental rights over providing services . [and] only applies o the failure to provide those services the state. deems nocessary.” and provides litle guidance to the states about how to fulfll the requirement. 1d. at 292 Halperin & Harris, supra note 67, at 340 (axguing that the failure to address the needs of incarcerated mothers with children in foster care compromises the women’s rights as parents). 7. Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, § 101,94 Stat. 500; Benites, supra note 16, at 205, 8. Benitos, supra note 16, at 204-05. 89, BERNSTEIN, supra note 16, at 15152, 90._1d. at 149. ‘Many prisoners do stints even for minor infractions that exceed ASFA’ssi. and fifteen-month time limits. In New York state, more than 90 percent of women convicted of felonies, ncluding low-level noviolont erimes, will serve at least ighteen months—three months more than the longer o the ASFA time limits. Nationwide, the average term being served by parents in state prison is eighty months. 1d; Beckorman, supra note 41, at 12; Block & Potthast, supra note 41, at 562-63; Halperin & Harris, supra note 61, at 340 (noting that “the number of children with parents in prison has become an increasingly larger proportion of all children in nonrelative foster. care”); Benites,supra note 16, at 218, In fact some believe the increase may be as much as](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 15.png)
![176 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161 courts to weigh incarceration as a factor in assessing whether paren- talrights should be terminated.” The standards for determining when a parent’s right to raise their child should be terminated based on, incarceration are varied and vague.” States typically apply a two step process for determining whether to terminate parental rights. First, a finding that the parent is unfit or unsuitable is made under a clear and convineing standard.* Then, ifa parent is found unfit, most states weigh whether terminating parental rights would be in the childs best interests.” However, states differ sharply in the applicable standard of review and in how fitness is determined.* In states in 250%. Genty, supra note 21, at 1678; Travis, supra note 16, at 34 91. See, .. KAP.v. DP.and CP.,11 S0.3d 812, 819 (Ala. Civ. App. 2008) ([Tlhere has never been a dispute in our cases that current imprisonment extending for o long period during the child’s minority may bo a sufficient basis for a finding that the im. prisoned parent is unable or unwilling to discharge his o her responsibilities to and for the child, especially when the evidence shows that the imprisonment prevents the parent from performing ordinary parental duties.’); RM. v. Dep’tof Children & Families, 847 8024 1103 (Fla. Dist. Ct. App. 2009). 92. See Kennedy, supra note 26, at 97-100. 93, Quilloin v. Walcott, 431 U.S. 246, 255 (1978) (‘We have lttle doubt that the Due Process Clause would be offended il a State wore to attempt to forco the broakup of a natural family, over the objections of the parents and the childzen, without some show- ing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” (quoting Smith v. Org.of Foster Familics, 431 US. 816, 862-63 (1977 (Stewart, 1, concurring). “[TJhe interest of parents in their relationship with their chil- dren s sufficiently fundamental tocome within the fnite class of berty interests protected by the Fourteenth Amendment.” Santosky v. Kramer, 455 U S. 745, 774 (1982) (Rehnquist, 3., dissonting; see also ML B.v. S.L.J, 519 U.S. 102, 11718 (1996) (4] parent’s desire for and right o the companionship, care, custody, and management of his or herchildren” is an important intorest . . ” (quoting Lassiter v. Dep’t of Soc. Serva., 452 US. 18, 27 (1951). The Supreme Court recognized that it is parent’s fundamental right “to make decisions concerning tho care, custody, and controlof their children.” Troxel v. Granvill, 530 U.S. 57, 66 (2000) (citing Stanley v. linois, 105 U.S. 645, 651 (1972); se o2, Prince . Massachusetts, 321 US. 158, 166 (1944) (It is cardinal with us that the custody. care and nurture of the child rosido first in the parents, whose primary function and frecdom include preparation for obligations the state can neither supply nor hinder.”); Pierco v Sac’y of Sisters, 268 U.S. 510, 534-36 (1925) (finding that the Oregon Compulsory. Education Act violated parents ‘liberty”interests in raising and educating their childron); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) stating that the right o raise one’s children “essential) 94, Santosky, 455 U.S. at 758 (rejocting New York’s use of a “preponderance” standard in parontal termination proceedings as a violation of a parent’s due procoss rights). 95. Id. at 779-50. 96. See, ., COLO. REV. STAT. § 19-3-604(1)(IID) (2011) (‘The court may order a ter mination ofthe parent child logal relationship upon the . [ljong-torm confinement of the. parent of such duration that the parent i not elgible for parole for at loast six yoars .._or ifthe child s under six years of age ... the long-term confinement of the parent of such duration that the paront is not ligible for parole for at least thirty-six months... ); KY. REV. STAT. ANN. § 600.020(2)(b) (LexisNexis 2011) (“The parent is incarcerated and will be unavailable tocare for the child fora period ofatleast one (1) vear from the dateof the childs entry into foster care and there is no appropriate relative placoment available](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 16.png)
![2012] “THE GOOD MOTHER" 177 which incarceration of the parent plays a role in determining fitness, there is a lack of consistency among the states as to whether courts should weigh the nature of the crime committed, the length of incarcer- ation, the fact of incarceration, or the parent’s efforts to communicate with her child after being imprisoned.” The fitness and the best inter- ests measures used by courts in parental termination proceedings are vague and rely greatly on the exercise of judicial discretion.” Drug laws and harsh sentencing policies for drug-related and nonviolent crimes result in lengthy sentences for a great number of imprisoned women.” Since the average prison sentences are longer than the twenty-two month period specified in the ASFA,"™ the av- erage incarcerated mother may be faced with efforts to terminate her parental rights primarily because of the length of her incarcera- tion alone.! In fact, one researcher reported a 250 percent increase in cases terminating parental rights due to parental incarceration. " While termination statutes are gender neutral and are applied to fathers as well as mothers, they impact women more significantly since women are more likely to be single parents who lived with their children immediately prior to incarceration.” The result is to undervalue the relationship between mother and child and to allow the termination of parental rights to become a de facto punishment for the erimes for which she was convicted.” The move to permanency during this period of time."); OHIO REV. CODE ANN. § 215L414(E)12)-(19) (LexisNexis 2011) (“The parent i incarcarated ... and will not be available to caro for the child for at loast ighteen months ... or] [tlhe parent is repeatedly incarcerated, and the ropeated in- carcoration provents the parent from providing care for the child."); OKLA.STAT. tit. 10A, § 14-904(12) (2011 (tating that one consideration is“the duration of incaxceration and ts detrimental effect on the parentichild relationship’); TEX. FAM, CODE ANS. § 161001(1) (Q) (West 2011) (“The court may order termination of the parent child relationship if the court finds by clear and convincing evidence [that the parent has] knowingly engaged in criminal conduct that has resulted in the parent’s . . . confinement or imprisonment and inability to care for the child or not loss than w0 yoars from the date of filing the petition."; UTAH CODE ANN. § 78A-6-508 (LexisNexis 2011) (terminating parental rights if the parent is incarcerated for such a time “that the child will be deprived of a normal home for mare than one year’). 7. See BERNSTELN, supra note 16, at 150-51 (discussing differences betsween the Goorgia and New York systems); Dalloy, supra note 61, at 19- 98. See Kennedy, supra note 26, at 98-99. 99 MUMOLA, supra note 16, at 5 Wolf et al, supra note 75, at 14041 100, Travis, supra noto 16, i 84; see also Crossley, supra noto 85, at 292 101, BERNSTEIN, supra note 16, at 148; see supra note 90 and accompanying tex. 102 Travis, supra note 16, at 34 (citing Genty, supra note 21, at 1675). 103 Baunach, supra note 46, at 157; Joseph Murray & David P. Farrington, The Effects of Parental Imprisonment on Children, in 37 CRIME AND JUSTICE: A REVIEW OF RESEARCH 133, 179 (Michael Toney od., 2008). 101, Genty, supra note 21, at 167879 (noting that family separation is a collateral consequence of incarceration, inding that damage to the family relationship is often an indirect consoquence of incarceration).](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 17.png)
![2012] “THE GOOD MOTHER" 179 Areview of cases reveals that courts can be eritical of parental efforts to maintain a relationship with their children while incarcer- ated and have been willing to terminate parental rights in many of these cases."™ In reviewing termination appeals, some courts have found that incarceration does not discharge a parent’s statutory obli- gation to provide for her child with a continuing relationship through communication and visitation." For example, some state courts have held that inearceration is no excuse for a parent failing to communi- cate and keep contact with her child."* Courts reason that a parent who s prevented from maintaining meaningful contact with a child by his incarceration and who thereby risks having his parental rights terminated “cannot object to the natural consequences brought about by his own voluntary commission of criminal acts.”"* Courts are also skeptical of mothers who fail to get the assistance they need until they are imprisoned, reflecting a disconnect between the state’s ex- pectations of mothering and the reality of parenting for poor, single mothers."™ For example, in In the Interest of E.M.H., Minor Child, BB, the Iowa Court of Appeals affirmed a decision to terminate a mother’s parental rights.""* The court found: The State offered Brandi a wide array of services, which she did not participate in or respond to, beginning in 2005 with her first child. ... [S]he did not begin participating in substance abuse treatment until after she was incarcerated. However, once incar- cerated, Brandi did become involved in a substance abuse treat- ‘ment program and participated in a parenting class at the prison. 110. See, g, In re J L., 924 N.E.2d 961,968 (1L 2010). Note that the Suprome Court in Santosky . Kramer requires courts determining parental termination matters to require “clear and convincing” evidence that the parent s unfit. Santosky v. Kramer, 155 US. 745, 769 (1982). However, th heightoned standard alono has beon insufficient to prevent torminations primarily due to separation as a result of incarceration. 111, Inre B.F, No. 2008 CA 11, 2005 WL 4447700, at *4-5 (Ohio Ct. App. Oct. 5, 2008) (finding clear and convincing evidonce that it was in the children’s bost interest to torm. nate the mother’s parental rights where the mother was incarcorated, could have chosen to participate in a residential treatment program but decided to go t prison, was not due tobe released from prison until children would have been in agency’s custody for approx. imately 18 months, and had made little if any, progress on her case plan). 112 In re Omarian R, No. H14CPOG0OS6144, 2008 Conn. Super. Ct. LEXIS 1427, at “10-12 (Conn. Super. CX. June 2, 2008). 113, In re TGY., 631 SE2d 467, 471 (Ga. Ct App. 2006): s also In re TBR., 480 824901, 906 (Ga. Ct. App. 1997) (holding that “eriminal history of ropetitive incar- cerations for the commission of criminal offenses . . . constitutes an additional factor which may be considored” in determining whether termination of parental rights is in the best interests o the child). 114, See, e In re BF, 2008 WL 4447700, at *3 (affirming the termination of the parental rights of an imprisaned mother who chose prison in place oftreatment and later nrolled in parenting class in prison) 115, In re EALH,, No. 080701, 2008 WL 2906510 (Iowa Ct. App. 2008 July 50, 2008).](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 19.png)
![180 WILLLAM & MARY JOURNALOF WOMENANDTHELAW [Vol. 18:161 She also obtained her GED and maintained a job at the prison facility. ... [W]e conclude the State’s efforts towards reunifica- tion throughout the juvenile court proceedings were reasonable. Brandi, however, did not make it a priority to take advantage of the offered services until it was too late. . Brandi’s incarceration does not excuse her inability to care for Emily."* The court makes no examination of whether environmental stressors made it difficult for Brandi to take advantage of the assis- tance being offered until separated from her community through incarceration."” The factors that may have led to and fueled her substance abuse are not assessed, nor does the court reckon with the known links between a history of abuse and substance abuse."* Given the magnitude of the issues and rights at stake, a more thorough in- quiry into the causes of Brandi’s conduct, and what community re- sources could be made available to her to keep the family together, should have oceurred. Parental termination statutes give judges a great deal of discretion in weighing incarceration as a factor and the decision s “value-laden. . based on social policy, competing priorities, and law.”"* Under this approach, incarceration may be seen as a sign 116, Id. at *2-3 117, Id. (containing no discussion of the issue of environmental factors related to substance abuse). 118, See Murphy & Potthast, supra note 81, at 91-95; Wolf et al, supra note 75, at 143. 119, Matthew B. Johnson, Examining Risks to Children in the Context of Parental Rights Termination Proceedings, 22 N.Y.U. REV. L. & Soc. CHANGE 397, 402 (1996). The amount of time that triggers state intorvention varies from stato to state and from case. tocase. Sce,e.g,,COLO. REY. STAT. § 19-3-604(1)(B)III) (2011) (“Tho court may order the. tormination of the parent-child logal relationship upon .. [ong-term confinement of the. parent of such duration that the parent is not eligible for parole for at loast six years o .if the child is undor six years of age ... the long-torm confinement of the parent of such duration that the parent is not ligible for parole for at least thirty-six months ") K¥. REV. STAT. ANN. § 600.020(2)b) (LoxisNexis 2011) ("Th parent is incarcerated. ‘and will be unavailable tocare for the child for a period of at least one (1) year from the date of the child’s entry into foster care and there is no appropriate relative placement available during this period of time); OHIO REV. CODE ANK. § 2151 414(E)(12)-(13) (LoxisNexis 2011) (“The parent is incarcerated . . and will not be available to caro for the child for at least eighteen months .. or] [t]he parent is repeatedly incarcerated, and the ropeated incarceration provents the paront from providing care for the child."); OKLA. STAT.tt. 104, § 1-4-904(B)(12) (2011) (stating that one consideration is ‘the duration of incarceration and its detrimental effet on the parentchild relationshiy); TEX. FA. CODE. AN § 161.001(1)(Q)E) (West 2011) (“The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence . . that the parent has] knowingly engaged in criminal conduct that has resulted in the parents ... confinement or imprisonment and inability t care for the child for natless than two years from the date of filing the petition.”); UTAH CODE ANN. § T8A-6-508(2)(e) (LexisNexis 2011) (allowing termination i parents are incarcerated for such s time that the child wil be deprived of a normal home for moro than one year.”). Somo states allow courts to consider incar- coration of a substantial or extended period of time. See, ¢.¢., ARK. CODE ANN. § 9.27. 341(6)(3)(B)(vii) (2011) (“The parent is sentenced in a criminal proceeding for a period](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 20.png)
![2012] “THE GOOD MOTHER" 181 of unfitness, abandonment, or neglect, all of which imply the need to terminate parental rights to safeguard the child.’* These statutes permit courts to terminate rights of an incarcerated parent when the court determines that “continuing the parental relationship would be harmful to the child,” which, under this view, does not require proof that actual contact is detrimental but may presuppose harm based on factors such as the length of the sentence and the amount of con- tact between the parent and child."* The focus in the inquiry in termination proceedings is placed on the culpability of the mother and not the “nexus” between the mother’s behavior and any direct harm to the child.’** The systemic undervaluation of these connections may be the result of a persis- tent and narrow mythology that idealizes mothers and that is not of time that would constituto a substantial period of the juvenile’s ife”): DEL. CODEANX. it 13,§ 1103@)(5)(@)®) (2011 (‘The [paren] s incapable of discharging parentl rospon. siblites due to extended or repeated incarceration.”); FL, STAT. ANY. § 39.506(1)(d)(1) (LexisNexis 2011) (-The period of time for which the parent is expected tobe incarcerated will constitute a substantial partion of the period of time before the child will atain the age. of 18 years .. ); L. CHILD. CODE ANN. art. 1015(6) (201) ({TJhe parent has heen con- victed and sentencod o a period of incaceration of such duration that the parent will not e able to care for tho child for an extonded period of time ... ") R1 GEN. LAWS § 15-7- 7(a)(2)() (2011) (stating that “imprisonment, for a duration as to ronder it improbable for the parent to care for the child for an extended period of time.” is one consideration); S.D. CODIFIED LAWS § 26-8A-26.1(1) (2011) ([T]ho court may find that good cause exists for termination of parental rights o a parent who .. (s incarcerated and s unavailable to caro for the child during a significant period of tho childs minority, considering the childs e and the child’s need for care by an adult.). 120. See, .., Johnson, supra note 119, at 420-421 (describing a mother who lost parental rights,in part, because of the fact of her incarceration). 121 RM. v. Dep’tof Children & Families, 847 So. 24 1103, 1104 (Fla. Dist. Ct. App. 200); KAP. v. DP. 11 So. 3 812, 819 (Ala. Civ. App. 2008). [Tlhere has never beon a dispute in our cases that current imprisonment extending for a long period during the child’s minority may be a sufficient basis for a finding that the imprisoned parent is unable or unwilling to discharge his or her responsibilties o and for the child, especially when the ovidenco shows that the imprisonment prevents the parent from performing ordinary parental duties 1. 122. See CoLO. REY. STAT. § 19-3-604(1)(B)ID (2011); Thompson v. Tex. Dep’t of Family & Protective Sarvs, 176 S.W.3d 121, 126 (Tex. App. 2004) (cting TEX. FaM. CODE. ANN. § 161.001(1)(G) (2002); see, .., In re CALO., 901 So. 24 1168, 1171 (La. CL. App. 2003) ([T mprisonment may not be used as an excuse to escape parental obligations. ) ‘Adoption of Serge, 750 N.E.2d 498, 504 (Mase. App- Ct. 2001) (-Physical unavailability of the parent to provide day to day caro for the child, including for reasons of incarceration, was relovant ovidonce of unfitness ") Inre sabella C., 852 A.2d 550,558 (R 2004) ([ Tjhe. trial justiceis ot required to consider parcle ligibility, he o she is only required tocon. sidor the probable duration of imprisonment at the time of the termination.” (quoting In re Mercodos V., 788 A.2d 1152, 1153 (R.1. 2001)): Jane C. Murphy. Legal Images of Motherhood: Conflicting Definitions from Welfare “Reform,” Family and Criminal L, 53 CORNELLL REV. 655, 710 (1998) (explaining that in child welfare procecdings, courts foeus o “mothrs ifestylos and child-rearing practices rather than on harm to the child).](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 21.png)
![2012] “THE GOOD MOTHER" 183 and care-taking.™ These women are geographically distant from their children. ™ Visitation and physical contact with their children is out of their control and, according to studies, is often inconsistent at best but more often minimal or nonexistent.”* Communicating through telephone calls is an expensive and limited option, and incarcerated women may find sending cards and letters a difficult and ineffective means of expressing their complicated feelings for their children and about the situation in which they find them- selves.* Women who commit crimes, “are viewed as more pathologi- cal” than men who commit crimes.** Women who commit crimes, are incarcerated, and fail to maintain regular communication with their children may find it difficult to overcome common understand- ings of how “good mothers” behave. Even today, the role of mother is still a defining characteristic for women, and mothers who fall short of expectations are viewed negatively.’” Women are judged, in part, by their devotion and commitment to their children and are not good mothers until they devote most of their time and energy to being mothers.” Termination proceedings result in an evaluation of mothering that holds incarcerated women to a high and unrealistic standard and creates timetables for addressing shortcomings that fail to pro- vide sufficient time to address the difficult and wide-ranging issues these women may be facing. In addition, the models of mothering to which these mothers are held may reflect standards to which all parents should aspire but are ones to which most mothers probably fall short. For example, in In re J.L., in upholding the termination of the parents’ parental rights, the Illinois Supreme Court noted transgressions such as leaving a “knife on the table with the point outward,” allowing the children to run “around wildly” and failing to acknowledge children when they wanted to talk about their day at school.”” While perhaps demonstrating errors in judgment, such 130. See STACEY L. SHIPLEY & BRUCE A, ARIGO, THE FEMALE HOMICIDE OFFENDER SERIAL MURDER AND THE CASE 0 AILEEN WUORNOS xi-xii (2004). 131, BERNSTEIN, supra note 16, at 78; MUMOLA, supra note 16, at 5 132 BERNSTEIN, supra noto 16, at 78-81 (noting abstaclos to Tamily friendly visits including bulletproof glass, lon lines, and a lengthy approval process, and humiliating ccroening processes); Block & Potthast, supra note 41, at 566 (indicating that most vis- iting rooms are uncomfortable and may heighten children’s anieties about the visit), 133. See Block & Potthast, supra note 41, at 563-64; Luke, supra note 16, at 934 Samets, supra noto 57, at 296, 134, SHIPLEY & ARRIGO, supra note 130, at 11 135, See DOUGLAS & MICHAELS, supra note 124, at 22-23. 136. Id. 197, I re JL., 924 N.E.24 961, 964-65 (ILL 2010).](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 23.png)
![184 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161 parenting failures seem to fall short of demonstrating a lack of fitness to parent. Each of the transgressions cited by the court almost certainly would not lead to a termination of rights had the mother not had a history of incarceration, mental illness and domes- tic violence.’** The mother in In re J.L. admittedly falls far from an ideal of mothering, but whether her failures should result in the permanent severing of her parental ties to her children, and whether a middle class woman would be held to the same standard, are important questions that the court in the case is free to ignore, since the pre- vailing standard does not require such an inquiry. ™ At issue in the appeal was whether the parents had been given sufficient time to address their parenting deficiencies, particularly given the mental illness and abuse issues facing the mother.’* Even though the court acknowledges the difficulties an incarcerated parent may face in try- ing to improve his or her parenting skills, it concludes that the time period a parent is given to make such progress is not tolled by the time spent in prison." In fact, the court ultimately finds that ‘in the interest of judicial economy,” it would not remand the case to be decided, and it instead upheld the parental termination. " The mother in In re J.L., like many incarcerated women, is deal- ingwith a number of complicated and interrelated psychological and mental health problems that are impossible to address in the time periods prescribed by state and federal standards."* Incarcerated women engage in high levels of drug and alcohol use and frequently have histories of mental illness and abuse. " These women may find it diffieult to overcome addiction and mental health issues within the strict federal and state time-lines. In addition, they face the challenge of countering the negative stereotypes about the kinds of individuals who commit crimes, use drugs, and “allow” themselves to be abused. Women of color may be most impacted by the intersection of criminal law, child welfare policies and stereotyped thinking: [Wlomen of color remain the most impacted by increased levels of mass incarceration. These women are more often mothers of 138. See, e, In e Faith B., 832 N.E.2d 152, 159 (11l 2005) (holding that one fuctor indicating unfitness [montal illnes] is not sufficient to terminate parental rights). 139, In re JL. 924 N.E.2d at 966-67. 140, Id. at 964-65. 141, Id. at 965-69. 142! Id. at 970. 143 Wolf et al, supra note 75, at 14243, 144, Id.](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 24.png)
![2012] “THE GOOD MOTHER" 185 dependent children. ... While they are more likely to be nonvio- lent offenders, they are still viewed as a threat to the moral conscience of the dominant society since they fail to meet the standards of appropriate motherhood. "* These women in prison face an additional layer of struggle against stereotypes about women of color and poor women as moth- ers.!* Stereotypes about race, ethnicity, and class may affect percep- tions of mothering.’” Black mothers are often viewed as failing to live up to society’s image of the ideal mother.’** Black mothers are de- valued and fall short of the American ideal of motherhood; this has its roots in slavery. As Patricia Hill Collins notes, African-American women often struggle against: [t}he traditional family ideal [that] assigns mothers full respon- sibility for children and evaluates their performance based on their ability to procure the benefits of a nuclear family household Within this capitalist marketplace model, those women who’catch” legal husbands, who live in single-family homes, who can afford private school and music lessons for their children, are deemed better mothers than those who do not."* The devaluation of the images of poor mothers and mothers of color creates opportunities for the vague standards for fitness and best interest to adversely affect poor families and families of color. ™ The stigma associated with being convicted of a crime, spending time in prison, being a drug user, being poor, and/or being Black or Latina, may affect how these women are perceived and the extent to which 145, MeGee et al., supra note 40, at 510 (citing Sharp & Ericksen, Inprisoned Mothers and Their Children, in INVISIELE PUNISHMENT: THE COLLATERAL CONSEGUENCES OF ’MASS INPRISONMENT (B.H. Zaitzow & J. Thomas ods., 2003)). 146. See Dorothy E. Roberts, Motherhood and Crime, 79 10WAL. REV. 95, 108 (1993) (ex- ploring the elfects of gender, race, clas, and nature of erime on criminal convictions) Ihereinafter. Roberts, Motherhood and Crimel; Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood, 1 Av. U. J. GENDER & L. 1, 10-11 (1993) [hereinaftor Roberts, Racism and Patriarchy]. 147, Roberts, Motherhood and Crime, supra note 146, at 137 (Saciety s loss likely to identify with criminal mothers than with other classes of criminals. ... Women viclate gen. der norme when they engage in violence or abandon their children in pursuit of crime.”) 148 Murphy, supra note 122, at 691 (‘Poor minority women frequontly bear the pun- ishmant for deviating from the stereotype of the ideal mother, whercas white middle- class and wealthy womon reap the rewards for being good mothers”). 149, PATHICLAHILL COLLINS, BLACK FEMINIST THOUGHT: KNOWLEDGE, CONSCIOUSNESS, AND THE POLITICS OF EMPOWERMENT 182 (2nd ed. 2000), 150. Annette R. Appell, Protecting Children or Punishing Mothers: Gender, Race, and Class in the Child Protection System [An Essay], 48 S.C. L REV. 577, 585 (1997); Lonore M. MeWey et al. Parental Rights and the Foster Care System: A Glinpse of Decision Making in Virginia, 29.J. FAM. ISSUES 1031, 1047 (2008);see also Kennedy, supra note 26, at 103](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 25.png)
![186 WILLLAM & MARY JOURNALOF WOMENANDTHELAW [Vol. 18:161 they are viewed as capable mothers. These mothers may find it diffi- cult to convince first social workers and later judges that they are fit o suitable parents and often fall short of the “best interests” ideal- ism inherent in the fitness and best interests tests applied in termi- nation cases."” The result of devaluing motherhood by those in the margins—women of color, poor women, incarcerated women—and applying a best interests idealism to termination proceedings results in greater numbers of terminations. However, the children affected do not necessarily find permanent homes, and the number of chil- dren in foster care continues to climb.’** Incarcerated mothers are in greater need for assistance since their children are more adversely affected by the incarceration of their mothers than their fathers.’” Children of incarcerated mothers may be at greater risk of troubled behavior than the children of in- carcerated fathers, putting these children at greater risk for engag- ing in criminal behavior and continuing a legacy of involvement with the criminal justice system. " Moreover, studies seem to support the idea that these children may be more easily pulled into a pattern of “intergenerational” crime’ and are more likely to engage in illegal activity. ™ It is unclear whether this is the result of exposure to a par- ent’s criminal behavior, poverty and related environmental stresses, or other factors. ™ Women of color are at the greatest risk of having their children placed in foster care."™ Children of color are removed from 151, See Kennedy, supra note 26, at 101 152. See Moses, supra noto 27, at 98 (*Perhaps most notable is that children of incarcerated mothers were four times more ikely to be st ix’ foster care than all other childron. .. Theso children linger in foster caro until they are 18 when they ‘uge out’ of the system.”); Schetky ot al., supra note 27, at 367 (1S]tudies have shown that once a child is placed in foster care, he ar she has a 50% chance of remaining there 3 years or longor. Some studies oven suggest that a child who has been in foster caro for longer than 18 months has a remote chance of being either adopted or returned home ” citation omitted); Steven M. Cytryn, Note, What Went Wrong? Why Family Prescruation Programs Faited to Achieue their Potential, 17 CARDOZ0 J.L. & GENDER 81, 9294 (2010) (discussing foster care from its incoption and the growth o oster care ovor time). 153, Wolf et al, supra note 75, at 143, Landrath & Lobaugh, supra note 57, at 157-¢ 155. Halperin & Harris, supra note 67, at 335, 156. Landreth & Lobaugh, supra note 57, at 138; Luke, supra note 16, at 933; see also Murray & Farrington, supra note 103, at 162. 157, See BERNSTEIN, supra note 16, at 14647, Foster care placement triggers the op- ration offedoral provicions that sct time requirements for severing tho logal tios between parent and child. Adoption and Safe Familics Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified in scattered sections of 42 US.C. (1997); Murray & Farrington, Supra noto 103, at 168, 171 (claiming that parental imprisonment is.a predictor but does not necessarily have a causal effect) 168 MeGeo et al, supra note 40, at 510.](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 26.png)
![2012] “THE GOOD MOTHER" 187 their homes and placed in foster care at a disproportionate rate.”” These children are also more likely to have their legal ties with their parents severed. " A numberof scholars have taken note of the dispro- portionate involvement of the state in families of color and poor fam- ilies and the greater rates at which their children are removed from their homes and placed in foster care. "’ It is not clear that the chil- dren, their parents, or their communities are well served by these ef- forts, and it is instead more likely that the permanent removal of these children does significant harm. Many of the women adversely affected by the intersection of the increasing reliance on incarceration and the effort to achieve perma- nency for children face a host of social and economic issues which make it difficult for them to provide for their children." In fact, many. come from communities that lack adequate housing, schools, jobs, and drug and aleohol treatment centers.’*” The result is that these women may find it difficult to provide for basic needs and get the assistance they need to cope with the stresses of living at the margins of society ina manner that would satisfy child welfare agencies and judges in parental terminations proceedings.’** A disconnect exists between what the federal and state standards and goals for child welfare ex- pect of these mothers and what they can reasonably provide under the circumstances and in the communities in which they often live. An example of the creation of standards for parenting that con- tribute to the termination of the parental rights of women who live with incarceration as a fact of life is presented in State of Tennessee Department of Children’s Services v. V.., which upholds the termi- nation of parental rights of an incarcerated mother one month before her release from prison.’™ The case is illustrative of the disconnect 159. See Dorathy K. Raberts, Child Welfare and Civil Rights, 2003 U_ILL. L REV. 171, 17278 (2003); Antoinette Greenaway, Note, When Neutral Policies Aren’t So Neutral Increasing Incarceration Rates and the Effect of the Adoption and Safe Familics Act of 1997 on the Parental Rights of African-American Women, 17 NATL BLACK L.J. 247, 25657 (2002-2004) 160. Roberts, supra note 159, at 172-73; Greenaway, supra note 159, at 236-57. 161, Roberts,supra note 159, at 17273 Greenaway, supra note 159, at 236-57. 162 REIMA, supra note 22, at 77110 (noting that for the same criminal behavior, the poor are more likely to be arested, chargod, consicted, sentenced to prison, and aro giv- en longer prison terms than members of the siddle and upper classes); see also Acoca & Racder, supra note 52, at 137; John Hagan & Ronit Donovitzer, Collateral Consequences of Imprisonment for Children, Communitics, and Prisoners, 26 CRIME & JUST. 121, 134-37 (1999): Luke, supra note 16, at 930; Pochlman, supra note 22, at 333, 339: Traci Schlesinger, The Cunulative Effects of Racial Disparities in Criminal Processing, 7. INST. JUST. & INVLSTUD. 261, 261 (2007); Teavis, supra note 16, at 163 Weber, supra noto 20, at 61445, 164 Roberts, supra note 159, at 172-73; Greenaway, supra note 159, at 25657 165. State Dot of Children’s Servs. v. V.N., 279 SW.34 806, 823 (Tenn. CL. App. 2008).](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 27.png)
![188 WILLLAM & MARY JOURNALOF WOMENANDTHELAW [Vol. 18:161 between state expectations for incarcerated parents and what it is likely these parents ean accomplish in the relatively short period of time allotted under the federal standards." The mother in V.N. had been incarcerated twenty times between 2002 and 2008."” Although the opinion is unclear as to the nature of all of the mother’s convic- tions, it does indicate that the mother had been jailed at various times for theft, driving on a suspended license, possession of drug paraphernalia, and violating probation.’*” At the parental termina- tion trial, a Department of Children’s Services representative testi- fied that the mother failed to comply with the permanency plans which required herto, inter alia, complete alcohol and drug treatment, main- tain an aleohol and drug-free lifestyle, be able to provide financially forherself and her child, have stable employment, and have safe and independent housing."*” According to the opinion, the mother was in- carcerated for the majority of the time, and, during the five months she was not in prison, she failed to obtain a job or independent hous- ing.™ The court further noted that the mother had some visits with the child but the mother attended only some of them and failed to attend a birthday party for the child for which she had promised to bring a cake and presents.” The mother’s presentation of evidence suggested a more compli- cated and frustrating picture. Her testimony suggests failures in the system, particularly a lack of resources to support her family and toal- low her to be a responsible caring parent."™ The mother testified that she did not understand the things she was supposed to do under the permanency plan and she stated: ... I’ve never had to depend on myself o really, T didn’t even know what place to work. . . There were services offered to me, but it wasn’t really nothing to help me. They never really showed me the way in doing anything. I mean, they would explain stuff to me, but I’ve, I’ve [sic] never really had to depend on myself before, so I really didn’t know what to do.”’™ From the mother’s perspective, there was a clear disconnect between ‘what social services expected in order for her to maintain her parental rights and her understanding of how to carry out the permanency plan. Although the perception of social services may have been that 166, Id. at 312-13. 167, Id. at 312 168, Id. at 311 169, Id. at 306 170. Id. at 310. 171, V.N.. 279 SW.ad at 310, 172, Id. ot 31213, 173, Id. at 312](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 28.png)
![2012] “THE GOOD MOTHER" 189 the failure to visit her child indicated a lack of interest in care-taking, the mother’s testimony says more about inadequate resources and as- sistance than a lack of care.™ When asked about whether she cared for the child, why DCS was unable to get in touch with her, and mis- sing visitations, the mother testified that she did not have a driver’s license, car, means of transportation, place to live, job or a phone.’™ She further indicated that she did not have a GED."™ When asked why she failed toattend her chil s birthday party, the mother testified, “Cause I didn’t have nothing to give her, and I didn’t want to, [ didn’t, T was embarrassed. I didn’t show up, ‘cause I didn’t want to hurt her no more ‘cause I didn’t have nothing. I had no job. I had no way of getting her anything.”” It is clear from the case that the mother’s addiction, lack of education, and joblessness reflects more than mere individual fail- ings. The mother seems to have lacked basic understandings of how to proceed to put her life back together and was without family re- sources to call upon to assist her. ™ The case reveals a family in eri- sis, a family in which at least three female members of the family were in jail at the same time for addiction-related behaviors.”™ The case reveals a family unable to provide the kind of support that would pre- vent the State from intervening to care for the child.™ The mother explained that her failure to more aggressively seek treatment for her drug addiction was partly due to her reliance on her mother to care for her child. " As a result, her mother’s and later her sister’s incarceration created a childeare gap she was unable to fill and al- lowed the state to step in and put her child in foster care.”™ The case also reflects the impact of inadequate education, pat- terns of work in underground markets that can often occur in poor communities, and the effect of intergenerational crime.’™ Although the mother had neither a high school diploma nor formal employ- ment, she had an arrangement with a friend, Mr. Landers, to provide services for him since he was disabled.’** Apparently, the mother had done general housekeeping for Mr. Landers in the past and he 174, Id at 31213, 175, Id. 176. Id. at 315, 177, V.N. 279 SW.ad at 313, 178, Id. at 31214, 179, Id. at 307. 180, Id. at 3075 181, Id. at 31314 182, Id. at 307 183 See Justin Brooks & Kimberly Bahna, ‘% a Family Affair’—The Incarceration of the American Family: Confronting Legal and Social Issues, 28 U S.F.L REv. 271,250 (1994), 184, V.N., 270 SW.3d at 311-12.](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 29.png)
![190 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161 testified that when she was released from jail, the mother could live on the second floor of his five-bedroom house and could clean his house, do laundry, wash dishes, and cook for him in exchange for a wage. ™ The juvenile court noted this job arrangement but expressed concern that there had "been no proof of what her actual pay was or pay stubs or bank account records.”™ An informal arrangement to provide services in exchange for room, board, and pay is not uncom- mon in poor communities.™ The court, however, searching for more familiar and conerete evidence of employment, found Mr. Landers’s representations insufficient proof of the mother’s efforts to secure a job.’** The State’s expectations for mother as expressed by DSS and the judge may reflect a disconnect between the standard being ap- plied and what realistically can be achieved by these parents. Perhaps the greatest divide in the opinion is the conclusion up- holding the decision that terminating parental rights was in the child’s best interest.”” The result ignores less draconian possibilities urged by the mother during the hearing. " During her testimony, the mother in- dicated a strong desire to maintain a connection with her child, stating: The only thing T ask of the Court whatsoever s that T can get visi- tation with her. ... Tjust want to see her if ’m doing good. ... T mean, I can ask for another chance but I’m sure I’m not going to get [sic], but T want to do everything I can to see my kids because Tlove my kids.**" The court, reaching for an all or nothing solution, nonetheless con- cluded that the mother abandoned her child and that termination of parental rights would be in the child’s best interests.’* This case, like many others, would probably have benefitted from efforts to achieve a middle ground short of termination that might have allowed future con- tact between the child and his biological family 185. Id. at 312 186. Id. at 314 187. See SUDHIR ALLADI VENKATESH, OFF THE BOOKS: THE UNDERGROUND ECONOMY OF THE URBAN POO xii (2006) (reporting the use of a barter systom i poor communities s common); WILLAMULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW. URBAN Po0R 4175 (1996), 188, V.N. 279 SW.3d at 321 189, Id. at 323 (reaching this conclusion based on findings that the juvenile court did not err in finding clear and convincing evidence to terminate mother’s parental rights for abandonment and for failing to substantially comply with the permancney plan despite the State’s reasonablo efforts to assist the mother). 10. Id. at 323, 191, Id. at 313 192, Id. at 323](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 30.png)
![2012] “THE GOOD MOTHER" 191 1I1. DEVELOPING A CRITICAL RACE FEMINIST APPROACH TO RESOLVING THE TENSION BETWEEN PRESERVING PARENTAL RIGHTS AND ENSURING THE BEST INTERESTS OF THE CHILDREN There is some disagreement about how best to balance the myriad interests at stake when a mother who is incarcerated is un- able to provide family care for her children. "’ Some focus on prior- itizing the child’s need for permanence as a primary goal. The Adoption and Safe Families Act is designed to advance this goal, and a number of scholars support its implementation.** Some advocate for greater intervention in families where there is the potential for abuse and highlight the need to prioritize a child’s right to safety and permanence over a parent’s right to the care and custody of her children."™ Others would prefer to blunt the harsh edge of laws and policies that result in parental terminations and look for ways to balance the needs of the children of incarcerated parents with the rights of these parents. At the far end of this view, advocates focus more on the need to support parental rights and a mother’s right to parent her children.’* 193, See Virginia Sawyer Radding, Infention . Implementation: Are Many Children, Removed from Their Biological Familics, Being Protected or Deprived?, 6 U.C. DAVIS ] JUV. L & POLY 29, 42 (2001) ({A] large percentage of families involved in the Child Protection Systom are living in poverty.”). A number of scholars have addressed the. issue of whether children have constitutional rights to maintain o sever parental ties These scholars query whether children have a constitutional right to bond with their parents. See Johnson, supra note 119, at 199400 (noting that case law reveals that some. States are “parents’rightsjurisdictions” while thers are “child foeused jurisdictions” and that[tJermination of parental rghts is always u sensitive and difficult issue”); ROSS ETAL supra note 61, at 1 (stating that & child may have an interest in preserving a relation ship with o noglectful parent); see also James G. Dwyer, The Child Protection Pretense: States” Continued Consignment of Newborn Babies to Unfit Parents, 93 MINK. L. REY. 107, 44647, 476 (2008). 194, Proponents of the ASFA and short deadlines for terminating parental ights assert that doing so is in a child’s best interest. There is a vigorous debate about this issue in legal scholarship. See Marsha Garrison, Why Terminate Parental Rights?, 35 STAN. L REY. 423, 461 (1989); Robert M. Gordon, Drifting Through Byzantium: The Promise and Failure of the Adaption and Safe Families Act of 1997, 53 MINN. L. REV. 637, 658 (1999). 195, Adoption and Safe Families Act of 1997, Pub. L. No. 10589, 111 Stat. 2115 (1997 codified in scattered sections of 42 U.S.C. (1997)). 196. On a related point, Professor Dwyer also advoeates for anticipatory terminations in families with a history of abuse. See Dwyer, supra note 193, at 47273 197. See Annotte Ruth Appell, Virtual Mothers and the Meaning of Parenthood, 34 U MIcH_ JL. REFORM 683, 710, 758 (2001). Appell states that the “suggestion that the parental rights doctrine or family privacy is anachronistic may not comport with the. xpericnces of the thousands of familics who are deprived of the recognition and protec tion the doctrine affords.” Id. at 758 see also Philip Genty, Some Reflections About Three Decades of Working with Incarcerated Mothers, 29 WOMEN’S RIs. L. RE. 11, 14 (2007) 198. Appll, supra note 197, at 787-88.](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 31.png)
![192 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161 While many mothers in parental termination proceedings, like the mother in State of Tennessee Department of Children’s Services v. V.N., profess a desire to parent their children at a parental termina- tion hearing, critics would argue that their failure to maintain regular communication with their children means that terminating parental rights would serve their child’s best interest.’ The principal objec- tions toa parental rights approach to thinking about parental termi- nations are based in concern for the welfare of the child** The assumptions are that parental terminations can serve a child’s best, interest by severing a legal relationship with a parent who has ei- ther directly orindirectly harmed the child, and that a continued legal relationship between parent and child will further cause harm to the child*” These hypotheses are related to the idea that incarcerated women have failed in the past and will likely continue to fail to ade- quately mother their children. While incarcerated mothers may fall short of the ideal, and bar- riers exist to parenting from prison, these obstacles need not necessar- ily result in inadequate parenting. Despite the difficulties created by the distance and restrictions of prison life, an approach that errs on the side of parental terminations fails to account for the continued mother-child bond that often persists despite the obstacles created byincarceration.™” Although incarceration presents a number of ob- stacles to parenting, it does not necessarily break the psychological bond between the parent and the child** The separation due to incar- ceration is trying for all parents but may be particularly difficult and painful for mothers.* These women often report sharing a bond with their children and, for many, their incarceration is the first major sep- aration they’ve experienced.** Mothers in prison report feelings of guilt, anxiety, and sadness, and are often distressed over their lack 199. See In re Omarian R., No. H11CPO00S614A, 2008 Conn. Super. Ct. LEXIS 1427, at *30-32 (Conn. Super. CL June 2, 2008) 200. Appell supra note 197, at 732. 201, 1d. at 75859, 202, Baunach, supra note 46, at 155-56. 208, Id.at 155, 204, BERNSTEIN, supra note 16, at 71; DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND FAMILY LIFE IN URBAN AMERICA 95 (2004) (noting that “there is nothing intrinsically different sbout these famsilies [with an incarcerated parent] that sets them apart”); Block & Potthast, supra note 41, at 563; Erika London Bocknck ot al Ambiguous Loss and Postiraumatic Stress in School-Age Children of Prisoners, 18 J. (CHILD & FAM. STUD. 823, 330 (2009); Loper, supra note 43, at 81 205. See Lee, supra note 44, at 239 (addressing the “fragmenting effect” of maternal incarceration on families): se also Block & Potthast, supra note 41, a 361; Luke, supra note 16, at 930. 206, Baunach, supra note 46, at 157](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 32.png)
![2012] “THE GOOD MOTHER" 193 of parenting skills and concern over their children’s well-being.” Incarcerated mothers assert that being separated from children is a source of significant stress.* Dr. Baunach finds that the psycholog- ical repercussions may be analogous to those resulting from other forms of loss, such as death or divorce. The grief response emitted by inmate-mothers may be characterized by emptiness, helplessness, anger and bitterness, guilt, and fear of loss or rejection.”*” Many incarcerated women try to maintain contact and desper- ately want to be “good mother(s]” despite the barriers to maintaining contact.”* “Inmate mothers .. . possess positive parenting attitudes (love, caring, guidance) equivalent to those of mothers who are not. incarcerated,” and their self-esteem is often tied up with their role as mother.** Others conclude that “children are important to incar- cerated mothers: a majority of these mothers apparently want to de- velop a sense of responsibility as parents,” and “one of the greatest impacts of the separation is to heighten this interest in children.” Many imprisoned mothers “attempt to maintain some semblance of the mother role” while in prison.”’* Moreover, they report that they “plan to reunite with [their] children following release from prison.” seeing their “separation as only temporary.”** As a result, the most, damaging aspect of parental incarceration may be the threat of ter- mination of parental rights.** The ASFA and state termination standards fail to adequately account for the mother-child honds and the barriers and stereotypes incarcerated mothers face. " The ASFA should be amended to prohib- it the application of a statutory time-line to termination proceedings Short of doing so, however, parental incarceration should be an ex- ception to the application of the ASFA time-line, except perhaps for cases involving violence. In addition, courts should be prohibited from considering incarceration as a factor in determining parental termi- nation cases. Under this approach, timetables and standards of re- view would be adjusted to make it more possible for parents to retain 207. Id. at 157-58; Block & Potthast, supra note 41, at 563 (cting L. LeFlore & MA. Halston, Perceived Importance of Parenting Behaviors as Reported by Inmate Mothers: An Esploratory Studs, 14 J. OFFENDER COUNSELING SERVICES & REHARILITATION 5 (1989)) 208. Loper, supra note 15, at 84. 209, Baunach, supra note 16, at 157-58. 210 1d.at 15: 211, Block & Potthast, supra note 41, a 212 1d.at 563, 213, Baunach, supra note 46, at 165 214, Id_ (ctation omitted). 215, 1d 6. Id.at 157. 7. See Bonites, supra note 16, at 196,](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 33.png)
![2012] “THE GOOD MOTHER" 195 test approach similar to that used in custody matters and require that any conduct, including conduct relating to the fact of incarceration, have a demonstrably direct negative impact on the child before being considered in a termination hearing.* This approach would raise the bar for parental termination, shift the burden from the incarcer- ated parent, and fix the presumption in favor of preserving parent- child ties. Inorder to further protect incarcerated mothers, the ASFA and parental termination statutes that consider length of separation be- tween parent and child as a factor should be limited to voluntary separations and should be prohibited from characterizing imprison- ment as a voluntary separation.” Some jurisdictions have begun efforts to adjust termination standards and proceedings to be more realistic about the needs of incarcerated families.* One approach, recently adopted by New York, has been to expand the period of time during which an incarcerated mother may meet the permanency plan goals set for her by the state’s child welfare agency.” The recently 5 (2010 Wis. STAT. § 48.415 (LexisNexis 2010); see also Michelle Oberman, Judging Vanessa: Norm Setting and Deviance in the Law of Motherhood, 15 W & MARYJ. WOMEN &L 337, 337, 359 (2009) exploring the way the law distinguishes “good” mothers from bad” mothers). 22 Mark Sirasser, Fit to Be Tied: O Custody, Discretion, and Sesual Orientation, 46A0 UL REV. 841, 861-62 (1997) 223, A number of states allow courts to consider incarceration or the length of incar. coration as a factor without necossarily requiring proof o risk of harm to the child. See, ., ALA CODES 12-16-319(4) (LoxisNexis 2010) (lsting “convietionof and imprisonment for & felony” among factors that courts can consider in making parental termination de- cisions): AR CODE AXX. § 9-27-341 (2010) (terminating parental rights if it is in the child’s best nterest and “parent s sentenced in a criminal proceeding for a period of time that would contitute a substantial period of the juvenile’s ie"): CoL0. REV. STAT. § 19-3- B04(1))(3) (2010) isting “long term confinement ofthe parent” us a bsis or finding a par- ont unft) DEL CODEANN. tit. 13, § 1103(a)(5)(a)(3) (2010) (terminating parental rights if parent failed 0 plan for child’s necds and “respondent s incapable of ischarging parental responsibilitios duo to extended or ropeated incarceration’) 750 111 COMP. STAT. ANN. 50/1 (West 2011) (isting certain actsthat create a rebuttable presumption that parent is unfit, including convictions for cortain crimes); see also ALASKA STAT. §§ 47.10.011, 47.10.080, 47.10.,086, 47.10.088 (2010); FLA_STAT. ANN. § 39,806 (LexisNexis 2010): IpAHO CoDE. ANN. § 16.2005 (2010): 705 ILL. COMP. STAT. ANN. 405/1.2 (LexisNesis 2010); KAN. STAT. ANN. §§ 35-2269, 38.2271 (2010); K¥. REV. STAT. ANN. §§ 600.020, 610.127 (West 2010y L. CHILD CODE ANN. arts. 672.1, 1015 (2010); MICH. CONP. LAWS SERV. § 712A19b (LioxisNexis 2011); MONT. CODE AN, §§ 41-3-423, 41-3-609 (2010): N H. REV. STAT ANN. §169-C:24-a, 170-C:5 (2010); N.D. CENT. CODE §§ 27-20-02, 27-20-14 (2010); OHIO REY. CODE AN § 2151 414 (Wost 2010); OKLA STAT. tit. 10A,’§ 7006-1.1 (2010); OK. REV. STAT. § 4198502 (2009); PR LAWS ANN. ft. 31, §§ 6342, 634b (2010): R1 GEN LawS § 1577 (2010); S.D. CODIFIED LAWS §§ 226-8A-26.1, 26-84.27 (2010): TENN. CODE ANN. §36-1-113 2010); TEX. FAM. CODEANN. §§ 161,001, 161.002(5), 161,007 (West 2010); UTak CODE ANN. § T8A-6-508 (West 2010); Wy0. STAT. ANN. § 14-2-309 (2010). 224 Dorothy E. Roberts, Criminal Justiceand Black Families: The Collateral Damage of Over-Enforcement, 34.U.C. DAVIS L. REV. 1005, 1019 (2001). 225, N.Y. Soc. SERY. LaW § 358-a (Consol. 2011,](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 35.png)
![2012] “THE GOOD MOTHER" 197 of biologically related individuals to include ‘fictive kin.”*" These caregivers were neither necessarily related to the children who found themselves in their care nor did they displace the natural parent. This “other-mother” tradition, as noted by Professor Collins,*” is based in the theory that “hecause all children must be fed, clothed, and educated, if their biological parents could not discharge these obligations, then some other member of the community should accept that responsibility.”* Under this view, community mothers could re- ceive priority as foster care mothers and be paid a premium for caring for their children in need and keeping them in their own communi- ties.” This allows a continuity of care in a familiar community for the child but can also serve to empower the foster mother and the com- munity.** Collins notes that mothering and other-mothering has a history of leading to community activism.** Being a mother is often a source of power and can be a “symbol of hope.”*" She asserts that by rejecting separateness and individual interests, community moth- ering supports connectedness with others and common interests.”* This has the result of fostering a greater sense of community and can be a source of achieving status in the community.* On the other hand, terminating parental rights not only removes children from their communities but disempowers the mother whose only source of potential power or status may be as a mother, and disempowers communities by removing their youth. A systematic process for educating judges, caseworkers, and members of the bar about the issues facing incarcerated mothers might similarly help dull the force of the ASFA and state parental termination provisions. The need for judges to have a more realistic view of the nature of the relationship between parent and child, and the limitations on maintaining contact presented by incarceration, begs for rethinking the relationship between child welfare and penal systems. Judicial education could include sessions on the impact of COLLINS, supra note 149, at 179 citation omitted) I Id. citing MULLINGS, supra note 35), See id. at 180 Td. at 192. I COLLINS, supra note 149, at 198; Roborts, Motherhood and Crime, supra note 146, lack women historically have experienced motherhood us an empowering de- nial of the dominant society’s denigration of their humanity.’). 238, COLLINS, supra note 149, at 192. 239, See Perry, supra note 228, at 117. As partof a discussion of transracial adoption the author notes that “[flor Black women, part of the symbolic cultural meaning of mothering is tied to race.” . see also Roberts, Motherhood and Crime, supra note 1146 at 182 (‘Bearing and nurturing Black children cnsure the lfe of the Black community.”).](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 37.png)
![198 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161 domestic violence, childhood abuse, mental health issues, and grow- ing up in poor communities on women and on the abilities of moth- exs to parent effectively. Women from impoverished communities may have an even more difficult and stressful role in mothering their children than mothers with ample financial means and resources.*” Many of these women come from communities which present greater challenges to mothering and caring for their children than many other mothers. For example, one study of Central Harlem notes that “[women [in Harlem] spend an extraordinary amount of time es- corting children, limiting their movement, and trying . . . to keep them away from the violence. ...”*" Ensuring that judges and case- workers have a greater understanding of the struggles families face before, during, and after incarceration might lead to results that more often than not lead to the preservation of families. One of the common criticisms of parental incarceration is that the criminal justice and child welfare systems fail to work together.** From the point of arrest, through processing the accused and impris- onment, the criminal justice, sentencing, prison, and child welfare systems should coordinate their efforts to ensure safe care-taking and planning for children.*** Most police departments have vet to develop. concrete policies for responding to and dealing with situations in which children are present at the point of arrest.** States should mandate minimum standards for arrest procedures in which children are involved which would, at a minimum, require the child welfare agency to be informed of the presence of children and to consult with the arrested parent immediately after the arrest to ensure the safe placement of the child with a relative or close friend if at all possi- ble. In the absence of a family or friend with whom the child could be placed, the child welfare agency should secure a safe foster care placement for the children in or near the child’s community and with an expectation that siblings would not be separated. Moreover, stan- dards with regard to returning the children to their families as soon as possible, assistance with maintaining contact between the parent, and child, and minimum levels of communication between the social worker and parent should be required. The state should impose stan- dards on child welfare agencies for the facilitation of communication between parent and child. Balancing the responsibility between the 240, COLLINS, supra note 149, at 197. 241, MULLINGS, supra note 242 243, 244, BERNSTEIN, supra note 16, at 259, 4413637 Pochlmann, supra note 22, at 339,](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 38.png)
![2012] “THE GOOD MOTHER" 199 parent and the child welfare agency would be more effective in ensur- ing communication between parent and child and is a more realistic approach given the significant barriers parents in prison face in com- municating with their children. Family courts hearing termination proceedings should adopt a more holistic integrated approach to resolving termination maters. Termination proceedings should not proceed without the presence of the parent whose rights are in issue and those parents should be guaranteed a right to counsel.* Perhaps a lesson can be learned from the integrated approach taken in domestic violence cases in rethink- ing the interface between family courts and imprisoned parents faced with parental terminations.** In some jurisdictions, domestic violence cases may be assigned to a single judge under the “one family one judge” philosophy.*” The integrated approach to domestic violence ‘was adopted in recognition of the myriad social and legal issues fac- ing families experiencing intimate partner violence.** Judges are able tosee, understand, and help resolve the criminal, family, and matri- monial matters.**’ These judges bring together the lawyers, social workers, law guardians, and child welfare personnel who are work- ing with these families in order to provide a coordinated response to a problem that affects all members of the family.” An integrated family court could be authorized to require the ap- pearance of the parent, child welfare, a law guardian, the family, and a trained social worker from the penal facility before proceeding with a termination matter. Judges would have a more realistic view of the relationship between parent and child, as well as the obstacles to com- municating faced by incarcerated parents. Adopting an integrated ap- proach to sentencing and parental terminations, at least in some subset, of cases, would facilitate the coordination of istinct agencies. This ap- proach involves “taking the whole family to court” in recognition of 245. Konnedy, supra note 26, at 121; seealso In re Eileen R, No. 508828, 2010 N.Y. App. Div. LEXIS 9516, at *4 (N.Y. App. Div. De. 23, 2010) (reversing termination of parental rights in light ofthe lower cour’s failure to consider the incarcerated parents’ request to testify by telophone). 246, Intograted domestic violence courts are anly ono example of a generation of special- ized courts which attempt to deal more holstically with logal issues by addrossing not only. the range of logal problems presented in a case but often the social and peychological as well. Key Principles, N.Y. STATE UNIFIED C1. $v5., hitpifwwsenycousts govicourtslproblen _solving/IDV/key._principles.shtml (last vsited Feb. 13, 2012). 247 Overview Family Court, COMMONWEALTHOF Y. httpicousts ky govicireuiteourt Hamilycourt/ (last visited Feb. 13, 2012). 248, 1d 249, 1d 250. Key Principles, supra note 246](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 39.png)
![200 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:161 the fact that when a parent is sentenced, so too is the entire family.”" Mothers who are incarcerated may be faced with trying to find hous- ing and care for their children, may have drug and aleohol problems, ormay have a host of other social and economic problems that a judge can weigh in considering sentencing, diversion, and treatment pro- grams for the incarcerated mother. CONCLUSION| Incarcerated mothers remain a vilified group, and their children and families are largely invisible. Reform is needed so as to stem the tide of parental terminations due to incarceration and to support communities that are losing their youth to foster care and inter- generational crime. Greater assistance is needed for families facing cconomic stress and incarceration in order to limit family disruption. A more realistic view of what mothering entails in the face of poverty, addiction, and incarceration would better serve mothers and children, like Caliphah and Omarian. 251, Taking seriously the concern about the impact of incarceration on families and children would also mean rethinking much of the criminal justico system, including man- datory minimums, and providing greater latitudo in sontencing non-violont offendors. ‘While addressing these issues goes beyond the scope of this article, one approach could include permitting sentencing judgos t receive“family impact statement[s]” and roports. from child welfare workers about the family. BERNSTEIN, supra note 16, at 261 252, 1.](the-good-mother-mothering-feminism-incarceration-deseriee-kennedy 40.png)
“THE GOOD MOTHER"": MOTHERING,
FEMINISM, AND INCARCERATION
DESERIEE A. KENNEDY"
ABSTRACT
As the rates of incarceration continue torise, women are increas-
ingly subject to draconian criminal justice and child welfare policies
that frequently result in the loss of their parental rights.* The inter-
section of an increasingly carceral state and federally imposed time-
lines for achieving permanency for children in state care has had a
negative effect on women, their children, and their communities.
‘Women, and their ability to parent, are more adversely affected by the
intersection of these gender-neutral provisions because they are
more likely than men to be the primary caretaker of their children.’ In|
addition, incarcerated women have higher rates of substance abuse, do-
mestic violence, and childhood and domestic abuse that make it more
difficult for them to comply with federal and state standards for re-
taining their parental rights. Incarcerated mothers must also strug-
gle against stereotypes of mothers and effective mothering which may.
be at play in parental termination decisions. This article suggests that
feminists need to look more closely at these issues and proposes
changes to arrest, sentencing, and parental rights hearings that would
help incarcerated women maintain their connection with their children
and preserve their parental rights. The article suggests a community-
based approach to caring for the children of incarcerated women that
would help empower women and their communities.
INTRODUCTION
I WOMEN, CRIME, & THE CRISIS IN FAMILIES
1L BARRIERS T0 PRESERVING FAMILY UNITY IN FAMILIES WITH AN
INCARCERATED MOTHER
1. SUE MILLER, THE GooD MOTHER (1956)
* Professor of Law, Touro College, Jacob D. Fuchsberg Law Center. The author
would like to thank Touro Law Conter for its support and her roscarch assistants,
Paulina Rezler and Jesscka Green, for their outstanding assistance.
2 See, e, State Dopit of Children's Servs. v. V.N, 279 S W.3d 806, 323 (Tenn. CL.
App. 2008) (noting the loss of parental rights for the potitioner).
3. LAUREN E. GLAZE & LAURA M. MARUSCHAK, U.S. DEP'T OF JUSTICE, BUREAU OF
JUSTICE STATISTICS SPECIAL REPORT: PARENTS IN PRISON AND THEIR MINOR CHILDIEX
'1(2008), available at http:/bjs.ojp usdo] govicontent/publpdUpptme.pdf.
41 ot
161
162 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
111 DEVELOPING A CRITICAL RACE FEMINIST APPROACH T0 RESOLV-
ING THE TENSION BETWEEN PRESERVING PARENTAL RIGHTS AND
ENSURING THE BEST INTERESTS OF THE CHILDREN
CONCLUSION
INTRODUCTION
On August 22, 2007, when Omarian was four years old, the Com-
missioner of Children and Families filed a petition seeking the termi-
nation of the parental rights of Omarian's mother, Caliphah.* Caliphah
was thirty-four years old and had a record with the Department of
Children and Services that included shoplifting with her children and
domestic violence.* When Omarian was about two years old, Caliphah
was sentenced to four years in federal prison for forgery, criminal
impersonation, larceny and illegal entry into the United States.’
Caliphah placed Omarian with his aunt, but after concerns about the
quality of his care, the State removed Omarian and placed him with
foster parents.’ Caliphah maintained her desire that Omarian be
raised by her relatives until she could regain custody of him upon her
release, but the court determined that she failed to maintain suffi-
cient ties to her son.” Despite testimony from Caliphah asking that
her ties not be severed and stating that his Aunt was willing to care
for the child, the court found that Caliphaly's parental rights should
be terminated." The Court was persuaded by four-year-old Omarians
unwillingness to visit his mother in prison or the siblings he barely
knew and found that Caliphah had “abandoned” Omarian by failing
to maintain consistent contact with him while in federal prison.”
The court stated that Caliphah
‘has not provided financial support to the child and has not main-
tained consistent visitation and contact with [Omarian]
There was no evidence that the mother sent cards, gifts or letters
5. In re Omarian R., No. H14CPOGO0S6142, 2008 Conn. Super. Ct. LEXIS 1427, at
“1 (Conn. Super. Ct. June 2, 2008). The Connecticut statute at issue in the case allows.
the termination of parental rights based on a finding of sbandonment. According to the
court, court may find abandonment if a parent "failed to maintain a reasonable dogree
of interest, concern or responsibility s to the welfare of the child” d. at “21 citing CON.
‘GEN.STAT. § 17a-112)(3)(A) (201). “Indicia of intercst, concern and rosponsibiliy in-
elude [a]ttempts to achiovo contact with a child, tlephone call, the sonding of cards and
gifts, and financial support . Id. at *21-23.
Id.at s,
I at 5.
at*9-10.
1d at *14,
3
I re Omarian R., 2008 Conn. Super. Ct. LEXIS 1427, at *10-11, 19, *22-23,
2012] “THE GOOD MOTHER" 163
tothe child or participated in the child's education or shown [sic]
an interest in his health or welfare. The mother has not provided
a domicile for the child, did not provide food, medical shelter or
clothing for the child, nor offered a specific plan to provide those
basic necessities for her son.’”
Caliphah, who was scheduled to be released from prison one year
later, faced the loss of her child and deportation." Caliphah’s story
is strikingly similar to the vastly increasing numbers of women and
mothers in prison who frequently are faced with challenges to their
parental rights while in prison.™
Women, and in particular poor women and women of color, are
uniquely and disproportionately affected by the intersection of crim.-
inal policies that rely heavily on incarceration and child welfare
policies designed to achieve permanence for children in state care.”
“The number of women who are under criminal supervision has grown
dramatically over the last twenty years." These women are often more
likely to have been the primary caretakers of their children prior to
incarceration than incarcerated fathers.” Unlike male prisoners with
children, who can often rely on the child’s mother to continue to care
12, 1d.at 23
18, Id. ot *16-17.
14, See, e State Dopit of Children's Serva. v. V.N, 279 SW.3d 806, 323 (Tenn. CL.
App. 3008) (afirming termination of parental rights of incarcerated mother and remand.
ing for clleetion of costs assessed against the mother).
15. TRACY L. SNELL, U_S. DEF'T OF JUSTICE, BURFAU OF JUSTICE STATISTICS SPECIAL
REPORT: WOMEN IN PRIEON 6 (1994), available at http/bjs.ojp.usdoj govicontent/publpd!
/WOPRIS PDF (inding an incarcerated woman of color more Likely to be a mother with o
minor child than white women),
16. NELLBERNSTEIN, ALL ALONEIN THE WORLD: CHILDREN OF THE INCARCERATED 33
(2005) (nding women o he the fastest-growing prison population); GLVZE& MARUSCHAR,
supra note 3, at 3 ({Plarents in prison had nearly 19 million children . . 7)
CHRISTOPHER.J. MUNOLA, U S. DEP OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL
REPORT: INCARCERATED PARENTS AND THER CHILDREN 1 (2000), available at hitpi/bis
ojp.usdoj govicontent/pub/pdTipte pdf (fnding an increase of 500,000 from 1991 to 1999);
Katherine P. Luke, Mitigating the 11l Effects of Maternal Incarceration on Women in
Prison and Their Children, 1 CHILD WELFARE 929, 93132 (2002) ({1 Incarceration rates
of women have risen by moro than 400% in the past 20 years.”); Jeromy Travis, Families
and Children, 69 FED_ PROBATION 31, 33 (2005) (‘Between 1991 and 2000, the number of
incarcerated mothers increased by 87 porcent, compared with s 60 percont increaso n the.
number ofincarcerated fathers.); Erica D. Bonites, Comment, In Defense of the Family: An
Argument for Maintaining the Parenial Rightsof Incarcerated Women in Texas, 3 SCHOLAR
193, 194(2001) (analyzing Texas parental erminations based on parental incarceration).
One study found that three-quarters of all women i prison were mothers, most o whom
had experienced physical o sexual abuse before imprisonment, committed a drugoffense,
were in prison for a non-violent offense, andlor committed their crime under the in.
fluence of drugs or alcohol. SNELL, supra note 15, at 1,5.
17 Mothers in prison are far moro likely than men in prison o roport having lived
with their children before incarceration. In addition, mothers were more often a single
parent. See GLAZE & MARUSCHAK, supra note 3, at 4, 5.
164 WILLLAM & MARY JOURNAL OF WOMEN ANDTHELAW [Vol. 18:161
for the child and foster communication between the father and the
child during incarceration, incarcerated mothers more often must
rely on extended family or the state to care for their children while
incarcerated. In addition, these women and their families are fre-
quently dealing with socioeconomicstresses, addiction, and histories
of abuse, at higher rates than male prisoners.” Frequently there are
insufficient resources to address these problems and to assist these
women in keeping their families together.”” The dearth of resources
ata familial or community level and the need to depend on state as-
sistance to provide childeare for their children prior to, during, and
after their incarceration make incarcerated women extremely vul-
nerable to having their parental rights permanently severed during
their incarceration.”
18, Bonites, supra note 16, at 218-19.
16, GLAZE & MARUSCHAK, supra note 3, at 7 (*Mothers in state prison [are] more
likely than fathers to report homelessness, past physical or sexual abuse, and medical
and mental health problems.).
20. See, ... In re Gurynne P., 830 N.E 24 508, 520 (1. 2005) (finding an incarcerated.
mother unfit bucatise of drug, alcohol use, and incarceration): Ellen M. Weber, Bridging
the Barriers: Public Health Sirategies for Expanding Drug Treatment in Comminities, 51
RUTGERS L. REV. 631, 64445 (2005) (deseribing inadequacy of state and local resources
for drug addicts).
21. Seo Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96272, § 471,
94Stat 500 (1980). In addition, some estimate that 34 states hav statutes that includ.
parentalincarceration as.a factor in terminating parental rights. See BERNSTEIN, supra note.
16, at 150. The following statutes allow courts to consider incarcoration oF conviction as a
factor tobo considered in parental termination proceedings: ALA. CODE§ 12-15-319(a)(4)
(LexisNexis 2010); ALASKA STAT. §§ 47.10.011(2), 47.10.088 (2010); ARIZ REY. STAT. § 5
533(B)(4) (LexisNoxis 2010); ARK. CODE. ANN. § 9-27-341(6))(b)(vii) 2011); CAL FAM
CODE§ 7825 (Deering 2010 CoLo. REV. STAT.§ 19-1-604(1)bNI) (2010 DEL CODEANN
E13,§ 1103(@)(5)@)(3) (2011; D.C.CoDE §§ 16-2353, 16-2354(:)3)(C) (LexisNesis 2010
FLA STAT. ANN. § 39.806(2)(d) (LexisNexis 2010): GA. CODEANN. § 15-11-94(h)(4)(B) i)
(2011); IpAHO CoDE ANN. § 16-2005(1)(e) (2010 705 ILL COMP. STAT. ANN. 405/1-2
(Lexis Nexis 2011); 750 ILL. COMP. STAT. ANN. 50/1(D)r) (LexisNexis 2011); IND. CoDE.
§31.94.21.5.6(5)(3) (LoxisNexis 2011); KAN. STAT.ANN. §§ 18-2269(1)(3), 38-2271 (2010);
K. REV_STAT. ANN.§ 600.020(2)(5) (LexisNexis 2010y La. CHILD. CODEANN.art. 1015(6)
(2010); ME. REV. STAT.tit. 22, § 1055 (2010): MD. CODE ANN. FAM. Law § 5-525.1(6) (1))
(LexisNeoxis 2010): MASS. ANN. Lawsch. 119,§ 26(c) (LexisNoxis 2011): MASS. ANN. LaWS
ch. 210, § 3(e)xii) (LoxisNexis 2011); MICH. CoMP. LAWS § 7124 19b(3(h) (2010) M
CODEAN. § 93-15-103(3)() (2010) (as interpreted in Vance . Lincoln Cty. Dep'.of Pub.
Welfare, 582 So. 2d 414, 418 (Miss. 1991) (Imprisonment, and the rosulting conditions,
canbe rightfully considered as a significant factor whon determining whether rights may
o terminated.); Mo. REV. STAT. § 211,447 (7)(6) (2010); MONT. CODE ANN. §§ 11-3-423,
41:3.609(1)(¢) (2010): NEB REV. STAT. ANN. § 43.292(10)-(11) (LexisNexis 2010); NEV. REy.
STAT.ANN.§§ 128,105, 128.106(6), 432B.393 (LexisNexis 2010); N.J STAT. ANN. §§ 30:1C-
11.2(0)2), 30:4C-15 (West 2010) N.C. GEN. STAT. § TB-1111(a)E) (2010); N.D. CENT. ConE.
§527.20.02(3)(), 27-20-44 (2010); OF10 REV. CODE ANN. § 2151.414(E) (13) (LexisNexis
2010); OKLA. STAT. tit. 104, § 1-4:904(12) 2010): OR. REV. STAT. § 419B.504(6) (2010);
23 PA CoNS_ STAT.§ 2511(@)(9) (2010); P-R_ LAWS ANN. tit 31, §§ 634a(). 634b (2010);
RLL GEN. LAWS § 15-7-7(2)(2)() (2010); S D. CODIFIED LaWs §§ 26-8A-26.1(4), 26-8A-27
(2010); TENN. CODE ANN. § 36-1-113(1)(A) (2010); TEX. Fax. CoDE ANN. §§ 161.001(Q),
2012] “THE GOOD MOTHER" 165
Mothers with limited family resources for childcare and assistance
are most at risk for having their children enter state care either prior
toor during their incarceration. ® Once a child is in foster care, federal
laws which limit the period of time a child may be in foster care propel
a state to move to terminate the parental rights of an incarcerated
parent under a federally mandated time-line.”” In this way, federal
and state law and policy intersect to place families of incarcerated
mothers and their communities in erisis by making the families vul-
nerable to parental termination.** The issue of how to balance the need
of the children for stable caring communities and the parental rights
of incarcerated women remains unresolved. In fact, terminations of
parental rights of women who have come into contact with the crimi-
nal justice system have increased dramatically since 1991 Yet, this
risein terminations has not resulted in a comprehensive and system-
atic governmental response to assist these families.** Nor has there
been a corresponding increase in adoptions for these children.” The
161.002(6), 161.007 (West 2010); UTal CODE AXN. §§ T8A-6-507, TBA-6-508(2)(0) (Lexis:
Nexis 2010); VI STAT. ANN. tit. 154, § 3-504(a)(3) (2010); VA, CODE ANN. § 16.1-283(E)
(2010): WaSH. REV. CoDEANN. §§ 13.34.132(4), 13.34.180 (LoxisNexis 2010): W.VA. CoDE.
ANN. § 49-6-50(a)(3) (LoxisNexis 2010): Wy0. STAT. ANN. § 14-2-809(2)(4) (2010);sec also
Philip M. Genty, Damage to Faily Relationships as a Callateral Consequence of Parental
Incarceration, 30 FORDHAM URS L.J. 1671, 1678 (2008) (noting an increase in parental
rights tormination procoedings for prisoncrs)
22, JEFFIEY H. REIMAN, THE RICH GET RICHER ANDTHE POOR GET PRISON: IDEOLOGY,
(CLASS, AND CRIMINAL JUSTICE 78 (24 cd. 1984) (‘For the same eriminal behavior, the poor.
are more likely to bo arrested; if arrestod, they are moro likely to be charged: i charged,
more likely to be convieted; if convicted, more likely to be sentonced to prison; and if
sentenced, more likely to bo given longer prison torms than members of the middlo and
upper classes” citation omitted)); Luke, supra note 16, at 931; Julio Poohlmann, Children
of Incarcerated Mothers and Fathers, 24 WIs. J.L. GENDER & SocY 331, 333 (2009).
23. Adoption and Safe Families Actof 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997)
(a5 amended in scattored sections of 42 U.S.C. (1997): see also Mariely Downey, Losing.
More than Time: Incarcerated Mothers and the Adoption and Safe Familics Act of 1997,
9 BUPR. WOMEN'S L.J. 41, 44 (2000-2001); Catherine J. Ross, The Tyranny of Time:
Valnerable Children, “Bad” Mothers, and Statutory Deadlines in Parental Termination
Proceedings, 11 VA.J. S0C. POLY & L. 176, 177 n.2.(2004)
24. A fow states have responded to the growing crisis by extending the period of time.
in which a child may be in stato care bofore triggoring the ASFA deadlines. New York
recently amended its parental termination statutes to provide incascerated parents with
additional time to met child wellaro standards See infra noto 225 and accompanying text.
‘While it i too soan to assess the impact of this legislation, without more, it ikely fails to
g0 far enough to address the underlying substantive issues these families are facing
25. PATRICIA . ALLARD & LYNN D. LU, REBUILDING FAMILIES, RECLAINING LIVES 3
(200), availableat bty www poliyarchive rg/handle/ 1020 7bitstroams/ST04. pdf (inding
tormination of parental rights of incarcerated parents increased).
26, See Deserice A. Kennedy, Children, Parents & the State: The Construction of a
New Family Ideology, 26 BERKELEY J. GENDER L. & JUST. 78, 81 (2011).
27. Marilyn C. Moses, Correlating Incarcerated Mothers, Foster Care, and Mother-
Child Reunification, CORRECTIONS TODAY, Oct. 2006, at 98, 98 (*Perhaps most notable
is that children of incarcerated mothers were fou times mare likely to be still i oster
166 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
children of incarcerated parents are more likely than other foster
care children not to be adopted and to linger in foster care.” Whether
criminal justice and child welfare policies that lead to these results
are adequately serving the needs of these families and communities
is & question with which feminists should be deeply concerned. The
dismantling of these families and communities through the operation
of a series of laws and policies should be seen as a call to action for
feminists interested in dismantling stereotypes about women, moth-
ering, race, and poverty.
The current approach to parental terminations and incarcerated
mothers stems in part from an idealization of motherhood at play in
the application of state parental termination standards and federally
imposed timelines for families with a child in state care.” The current
approach to parental terminations is based on a traditional notion of
mothering that idealizes a nuclear family model and that lays primary
responsibility for the family’s functioning with the mother.”” At the
same time, it demonizes mothers who, unable to provide direct care on
their own for a multitude of reasons, need to craft a web of support to
assist them to care for their children.” Current approaches to arrest,
incarceration, parental rights, and child welfare, are critical of moth-
ers who fall short of a mothering ideal and who need help to fulfill
their roles as mothers.™ A critical race feminist approach to the ter-
mination of parental rights for incarcerated mothers would make
visible the numerous social, legal, and political barriers that coalesce
to place an unfair burden on incarcerated mothers. Illuminating the
web of stereotypes, institutional disconnects, and economic and com-
munity realities reveals that terminating parental rights of incarcer-
ated mothers does not resolve the crises in families and communities
hardest hit by the continuing focus on incarceration as a response to
non-violent erimes.* In addition, severing legal ties between parent
and child is simply one more aspect of the current retribution model
caro than all ather children. Those children lingorin foster care untilthoy are 18 when they
‘age out of the system”); Diano H. Schotky et al, Parents Who Fail: A Study of 51 Cases
of Termination of Parental Rights, 18 J. Av. ACAD. CHILD PSYCHLXTRY 366, 367 (1979)
([S]tudios have shown that once a child is placed in foster care, he or she has a 50%
chance of semaining thero 3 years or longer. Some studies even suggest that a child who
has beon in foster care for longer than 18 months has a remote chance of being either
adopted or returned home”(internal citations omitted).
28. Moscs, supra note 27, at 95; Schotky ot al., supra note 27, at 367.
29. Ross, supra note 23, at 18788
30. 1d.
31, Sec, 8. In re Omarian R, No. H14CPOS00S614A, 2008 Conn. Super. Ct. LEXIS
1427, at *34-38 (Conn. Super. CL June 2, 2008) (torminating the parental rights of a
mother who could not socure support for her son during her incarceration).
32. Kennedy, supra note 26, at 80.
331,
2012] “THE GOOD MOTHER" 167
of incarceration that disproportionately affects women and people of
color and removes children not only from their families but from
their communities.*
‘This article argues for an examination of the intersection of crim-
inal justice and child welfare policies from a feminist perspective in
order to help support incarcerated mothers and all women who
struggle to expand the notion of motherhood to be more inclusive. It
suggests that a parental rights approach to parental terminations
‘would operate to empower incarcerated women and their communities
by emphasizing the need to provide adequate long term care for their
children within their own communities without severing the parent-
child relationship. Part I of the article explores the impact of criminal
justice policies on families, Part II examines the barriers to preserving
Tamilies created by federal and state laws and policies and Part 11T
suggests a critical race feminist approach to resolving the tension be-
fween preserving parental rights and ensuring the best interests of the
child that focuses on the need for community-centered solutions to
the current rise in parental terminations.
L. WOMEN, CRIME, & THE CRISIS IN FAMILIES
Theinvoluntary termination of parental rights of prisoners should
be viewed as a gendered and political act with community-wide rami-
fications.® In assessing the appropriateness of state intervention into
families with incarcerated parents, it is important to be realistic
about the political and economic circumstances of women who commit
crimes and the difficulties they may face raising their families both
prior to and during their incarceration.* In order to effectively serve
the needs of poor families, child welfare law and policies should ac-
knowledge the impact on women and their families of the war on crime,
mandatory sentencing, and an over-reliance on incarceration as a re-
sponse to drug crimes and substance abuse.” The heavy reliance on
34, Id_at 113,
35. LErTH MULLINGS, ON OUR OWN TERAS: RACE, CLASS, AND GENDER IN THE LIVES
OF AFRICAN AMERICAN WOMEN 93 (1997) (noting that rosidents of Contral Harlem ex-
pressed concorn about losing the community's children)
36. Kathi J. Kempor & Froderick P. Rivara, Parents in Jail, 2 PEDIATRICS 261, 262
(1993) (examining the demographics of incarcerated parents).
7. Joyee A. Avditti, Locked Doors and Glass Walls: Family Visiting at a Local Jail,
8. 0F LoSS & TRAUMA 115, 115 (2003) (emphasizing the challongos of harsh criminal
‘sanctions for nonviolent offenders): Holly Foster & John Hagan, The Mass Incarceration
of Parents in Americas Issues of Race/Ethnicity, Collateral Damage to Children, and
Prisoner Reentry, 623 ANNALS AM. ACAD. POL. & Soc. SC1. 179, 190 (2009) (noting the im.
pactofa
igh roliance on mass incarceration in rosponse tocrime in the United States):
168 WILLLAM & MARY JOURNAL OF WOMEN ANDTHELAW [Vol. 18:161
incarceration as a response to crime has had a deleterious effect on
‘women and children.** These changes in criminal law and policy and
the dependence upon prison as a response to non-violent crimes has
helped the numbers of incarcerated mothers in the United States to
grow eighty-eight percent from 1991 to 2002 and, as a result, the
United States now has “the highest incarceration rate in the world.”
Although it is still true that most prisoners are male, the number of
women in prison has been skyrocketing." In large part due to the
explosion of the female prisoner population, there has been a dra-
matic increase in the numbers of mothers who are incarcerated.
From 1990 to 2007, the number of mothers in federal and state
Kemper & Rivara, supra note 36, at 262, tb. 3 (ndicating the primary types of offonses
leading toincarceration of mothers): Nekima Levy-Pounds, Can These Bones Live? A Look
At the Impacts of the War on Drugs on Poor African-American Children and Families, 7
HASTINGS RACE & POVERTY L. 353, 357 (2010) (*The combination of the Anti-Drug
‘Abuse Acts of 1984 and 1986 and the mandatory minimum sentencing schom comprises
the backbone of Congress's war on drugs. .- Mandatory minimums caused judgos to
sentence defondants to an automatic, pro-determined torm of imprisonment based upon
the type and levelofoffense committed.” (citation omitted); Chicko M. Clarke, Comment,
Maternal Justice Restored: Redressing the Ramifications of Mandatory Sentencing
Minimums on Women and Their Children, 50 HOW. L.J. 263, 264 (2006) (describing the
“harshness and ineffectivencss of drug sentencing guidelines and conspiracy laws
applied to mothers.”). But see MUMOLA, supra note 16, at 6 tbl. 7 (finding that 24% of
incarcerated parents are serving sentences for drug offenses, compared with 17% of non-
parents, and approximately 44% of parents in prison were violent offenders); Weber,
Supra note 20, at 61418 (stating that communities often resit the establishment o drug
and aleohol treatment programs).
38. Maric Gottschalk, Dismantling the Carceral State: The Future of Penal Policy
Reform, 1 TEX. L. REV. 1699, 169391 (2006) (‘Over the past thre decados, the United
Statos has buil a carceral state that is unprocedented among Wostern countrios and in
ULS. history”).
39, Arditts, supra note 87, at 115; Christophor J. Mumola, U S. Dop' of Justice, Parents
Under Correctional Supervision: Past Estimates, New Measures, NATL INST. ON DRUG
ABUSE (Nov. 6, 2008), hitp/archives drugabuse.govimectings/children._at_risk /pdf
Mumola.pt.
40. Philip M. Gonty, Permanency Planning in the Context o Parental Incarceration:
Legal Issues and Recommendations, 77 CHILD WELFARE POL'Y 513, 544 (1998) (‘Over the
past 15 years, the population of fomale prisoners has increased by almost 100%, while the.
male population has increased by more than 200%.; Luke, supra note 16, at 931932
(affrming the 400% increase in female incarceration rates over the past 20 years); Zina
T McGee ot a, From the Inside: Patterns of Coping and Adjustment Among Women in
Prison, in I1's A CRME: WOMEN & JUSTICE 507, 508 (Roslyn Muraskin ed.,4th cd. 2007)
(asserting that one in overy 109 women are under some form of corroctional supervision);
Benites, supra note 16, at 194 (doscribing the incroase in fomale state prisons from 1956
to 1991); see also MUMOLA, supra note 16, at 3 tbl. 3 (examining the characteristics of
prison populations).
41, Adola Bockerman, Mothers in Prison: Mecting the Prerequisite Conditions for
Permanency Planning, 39 Soc. WORK 9, 10 (1994); Kathleon J. Block & Margaret J
Potthast, Girl Scouts Beyond Bors: Facilitating Parent-Child Contact in Correctional
Settings, 77 CHILD WELFARE 561, 562 (1998); Gottschalk, supra note 35, at 1694, 1723
2012] “THE GOOD MOTHER" 169
prison increased 122 percent* while the increase for fathers during
the same period was seventy-six percent.*
Current parental termination statutes that apply gender neutral
standards of fitness and connect incarceration with fitness ignore
the reality that women often have gendered and class-based causes
for their imprisonment.** The types of crimes that women commit,
according to criminal justice experts, may be intricately related to
women’s overall economic and political position in society. Incarcer-
ated women are more likely to be women of color, young, poor, less
educated and largely unskilled.® Mothers in prison are often deal-
ing with addiction and report higher rates of substance abuse than
incarcerated men.* Incarcerated women are also more likely than
imprisoned fathers to e struggling with mental health issues.'* Wom-
enin prison report significantly higher incidences of child abuse and
domestic violence as compared to men.’ Typically, the available
services are insufficient to meet the needs of these populations.™
‘Women in prison and their families ave more adversely affected by the
lack of services for alcohol and substance abuse, mental illness, and
childhood and domestic abuse.
Imprisoned mothers are less likely to present a danger to their
children or society.” Studies suggest that while some inmate parents
42, GLAZE & MARUSCHAK, supra note 3, at 2.
e
41 Bumi K. Lee, An Overuiew of Special Populations in California Prisons, T HAST.
RACE & POv. L.J. 223, 239 (2010)
45 MUMOLA, supra note 16, at 6 tbl. 7; Ann B. Loper, How Do Mothers in Prison
Differ from Non-Mothers, 15 CHILD & FAM. STUD. 83, 92 (2006) (assorting the possibility
that incarcorated mothers “drug activity was motivated by a need to find funds to support
the children”); Luke, supra note 16, at 931 (‘Many experts in criminal justice assert that
the erime committed by women is directly related to their disadvantaged economic po-
sition in society ... ") Travis, supra note 16, at 32
46 Phyllis Jo Baunach, You Can' Be o Mother and Be in Prison . . Can You!
Impacts of the Mother-Child Separation, in THE CRIMINAL JUSTICE SYSTEM AND WOMEN
155, 156 (Barbara Raffel Price & Natalio J. Sokoloff eds., 1982); Roslyn Muraskin,
Feminist Theories: Are They Needed?, in 11's A CRIME: WOMEN & JUSTICE, supra note 40,
at 31, 39,
47, JESSICAMEYERSON ET AL, CHILDHOOD DISRUPTED: UNDERSTANDING THE FEATURES.
AND EFFECTS OF MATERNAL INCARCERATION 7 (2010), available at hetpjwwww von.org
IChildhood-Disrupted-Report (2010) (fnding that 91% of incarcerated mothers who par-
ticipated in the study reported a history of substance abuse). Childhood Disrupted isa qual-
itative study of families affected by maternal incarcoration conducted by Volunteers of
America, a nonprofit, faith based organization, and Wilder Research. Id.
48 T a1,
49, MeGee et al, supra note 40, at 515 ({A] large number of [respondents] roported.
having been physically or sexually abused bofore their incarceration (10%) ..-).
0. Wober, supra note 20, at 64445,
1. Kemper & Rivara, supra note 36, at 262 tbl. 3 (noting types of crimes typically
committed by incarcerated mothers)
170 WILLLAM & MARY JOURNAL OF WOMEN ANDTHELAW [Vol. 18:161
commit violent crimes, the majority, like Caliphah, were incarcer-
ated for non-violent offenses. Professor Katherine P. Luke maintains
that, “[w]omen are more often convicted of low-level drug offenses
than men.”* Comparatively few incarcerated women are in prison
for crimes involving violence, sexual misconduct, or family-related
abuse.** Mothers in prison are less likely to have committed a vio-
lent erime than other prisoners and more likely to have committed
drug and property crimes than non-mothers.** Based on the higher
rates of poverty, their status as single parents, and the high per-
centage of inmate women who are domestic abuse survivors, it is
very likely that their crimes may be related to the stress of raising
children, providing for their families, and merely surviving* The ma-
jority of these women—some estimate seventy percent—are mothers
of two or three children, most of whom are under the age of thir-
teen.”” These women are also single parents and typically were the
primary caretakers for their children prior to being arrested.*
52. Inre Omarian R., No. H14CPOG00SG 144, 2008 Conn. Super. Ct. LEXIS 1427t %9
(Conn. Super. Ct. June 2, 2008) (discussing Caliphalvs arrests for larceny, welfaro fraud,
and re-entering the United States after deportation); Leslie Acoca & Myrna S, Raeder,
Severing Family Ties: The Plight of Nonviolent Female Offenders and Their Children,
11 STAN. L. & POL'Y REV. 183, 185 (1999); Komper & Rivara, supra noto 36, at 262 bl
3 (providing the statistis for types of crims committed by incarcerated mothers): Luke,
supra note 16, at 931 (Most incarcerated mothers are in prison for crimes unelated to
their parenting.” (citation omitted)).
50. Luke, supra note 16, at 931 (‘Many in the criminal justice field have suggested
that the aggressive war on drugs and the subsequent mandatory minimum drug sen
tencing laws are the primary reasons that the rate of female incarceration i increasing
at a rate twice that of mal incarcoration.”); see also MUNOLA,supra note 16, at 5; SNELL
supra note 15, at 3 thl. 2.
54. Kempor & Rivara, supra note 36, at 262 th1. 3. Itis also suggested that thero s a
probable link betweon recidivist parents and increased potential for family violence. Id
at 263,
55. Travis, supra noto 16, at 83 (Nearly half (46 percont) of incarcorated fathers
were imprisoned for u violont erime, 1s wero one-quarter (26 percent) of the mothers.
Nearly one-third of the mothers reported committing their crime to got cither drugs or
money for drugs ...).
56. Loper,supra note 45, at 92 Luke, supra note 16, at 931; Muraskin, supra note 46,
at 39 (examining various fominist theorics about women and crime).
57. Baunach, supra note 46, at 156; Garry L. Landreth & Alan F. Lobaugh, Filial
Therapy with Incarcerated Fathers: Effects on Parental Acceptance of Child, Parental
Stress, and Child Adjustment, 76.J. COUNSELING & DEY. 157, 157 (1998). The articulated.
estimates of the percentage of incarcerated women with childven varics. See Luke, supra
note 16, at 932 (placing the number of incarcorated mothers at 75-80% of incarcerated
women):; Lynn Samets, Children of Incarcerated Women, 25 Soc. WORK 298, 298 (1980)
(reporting the number of incarcerated women as anywhere from 42% o 80%).
58, Baunach, supra note 46, at 156; Luke, supra note 16, at 930 (' Women who bocomo
incarcerated are usually poorly educated single mothers from communitios of color who
are living in poverty and strugeling to be the sole financial and emotional providers for
their childron.):; Travis, supra note 16, at 32-33
2012] “THE GOOD MOTHER" 171
For many women, a prison sentence creates a serious childcare
gap.” The separation due to incarceration results more often in the
need for non-parental care for the child since mothers tend to be the
childs primary caretaker.” While most of the mothers will be able
to arrange childcare by a relative or friend, a significant minority of
children end up in state care either as a result of parental behaviors
that preceded incarceration or as a result of the incarceration.”
Children and families affected by maternal incarceration receive
little consistent formal assistance in providing care for the children,
facilitating a relationship between mother and child, or preparing
mothers for their release and successful reintegration into their
communities.” As a result of these and other factors, women are
uniquely at risk of having their ties to their children permanently
severed, and women of color and poor women are in the greatest,
danger.* Incarcerated mothers are not necessarily unfit, uncaring,
neglectful or abusive. Yet the predominant approach to dealing with
incarcerated mothers and their families is to treat these women as
if their convictions are proof of their unsuitability as parents and
evidence of the right of the state to intervene in their families.®
The impact of criminal justice and child welfare policies on
women is just another way in which women are adversely affected
59, See Baunach, supra note 46, at 156.
60. Luke, supra note 16, at 934; Travis, supra note 16, at 33 (‘Close to two-thirds
(64 percent) of mothers reported living with their children beforo incarceration, compared.
with slightly loss than half (41 percont) of fathers in 1997,
61, ZELMA WESTON HENKIQUES, INPRISONED MOTHERS AND THEIR CHILDREN 61
(1982): MUMOLA, supra note 16, at 1 (roporing figures for parents incarcerated in state.
prison); TIMOTHY ROSS ET AL, VERA INST. OF JUSTICE, HARD DATA ON HARD TIMES: AN
EMPIRICAL ANALYSIS OF MATERNAL INCARCERATION, FOSTER CARE, AND VISITATION 6
(2004, available at http:iwww.vera.orgldownload?fle=123/Hard%3Bdata pd; sce also
BRENDA G. MCGOWAN & KAREN L. BLUMENTHAL, WHY PUNISH THE CHILDREN? A STUDY OF
(CHILDREN OF WOMEN PRISONERS 56 tbL. 1 (1978); Ellen Barry, Legal Issues for Prisoners
with Children, in CHILDREN OF INCARCERATED PARENTS 147, 148 (Katherine Gabel &
Denise dohnston eds., 1995); Block & Potthast, supra note 41, at 562 Lanette P. Dalley,
Imprisoned Mothers and Thair Children: Their Often Conflicting Legal Rights, 22 HAMLINE
J.PUB.L. & POL'Y 1, 16 (2000); Sally Day, Mothers in Prison: How the Adoption and Safe
Families Actof 1997 Threatens Parcntal Rights, 20 WIS, WOMENL.J. 217, 226 (2005). But
e Moscs, supra note 27, at 98 (rovealing that in the majority of cases, in a study of in-
carcorated women in Illinois, reviowed children were placed in foster care prior to the
mother's first period of incarceration).
62, MEYERSON ET AL supra note 47, at 1.
63, It is important to note, however, that the studios associate recidivism with in.
ereased potential for family violence. Kompor & Rivara, supra note 36, at 263 thl. 3.
64. For example, despito the public and media attention paid to mothers who kill their
childron, the reality is that most imprisoned mothers are not incarcerated for harming
their children and statistics show that less than one percent of homicides committed by
femalos involve children less than thirteen years. Loper, supra note 45, at 92
65. Luke, supra note 16, at 935.
172 WILLLAM & MARY JOURNAL OF WOMEN ANDTHELAW [Vol. 18:161
by gender neutral laws and policies that are developed with men as
a starting point. Although men imprisoned for crimes are not priv-
ileged in the sense that they are necessarily treated better, women
who are subject to the same standards and policies for a variety of
reasons are more adversely affected.” The weight of sentencing, in-
carceration, and separation from their communities and families has
a greater and more negative impact on women,
11 BARRIERS TO PRESERVING FAMILY UNITY IN FAMILIES WITH
INCARCERATED MOTHER
The rising rates of incarceration for women have resulted in a
corresponding increase in parental terminations.” Child welfare
policies and federal laws which make achieving permanency for
children in state care a fundamental goal and the basis for parental
terminations do not adequately address the very real and significant
barriers to maintaining contact while incarcerated. For many incar-
cerated women, being “locked up” creates a childcare gap which many
must rely on others to fill.“ Approximately eleven percent of mothers
6. Clarke, supra note 37, at 261.
67. Ronnio Halperin & Jonnifer L. Harris, Parental Rights of Incarcerated Mothers
with Children in Foster Care: A Policy Vacuum, 30 FEMINIST STUD. 339, 339 (2004).
6. Adoption and Safe Families Act of 1997, Pub. L. No. 103-89, 111 Stat. 2115 (1997)
(corified in seattored sections of 42 U.S.C. (1997). A number of states allow courts to
consider incarceration or the length of incarceration as a factor without necessaily e
quiring proofor risk of harm to the child. See, ¢, AL\ CODE§ 12-15-319(a)(4) (LexisNexis
2011) (listing “conviction of and imprisonment fora elony” as one factor that can bo consid-
red in dotermining whether to terminate parental rights); ALASKASTAT. §§ 17.10.011(2),
47.10.0800) (2010) (allowing the state to consider the incarceration of parent when
dotormining whother a child is in necd of aid); COLO. REY. STAT. § 19.3-604()())
(2010) (lsting long term confinoment of the parent as one basis for finding a parent
unfit; DEL. CODE AXN. tit. 13, § 1103(a)(5)(@)(3) (2010) (allowing for the termination of
parental rights where the parent failed to plan for tho child's nceds and is incapable of
discharging parental responsibility dus to extended or repeated incarceration); 750 ILL.
Conp. STAT. ANN. 5011 (LioxisNexis 2010) (noting that being convicted of cortain crimos.
creates a rebuttable presumption of depravity): see also ARK. CODE ANN. § 9.27-341
(2010) FLA STAT. ANN. § 39.806 (Wost 2010); IDAHO CODE ANN. § 16-2005 (2010); 705
ILL COMP. STAT. AN, 405/1-2 (LexisNexis 2010); KA. STAT. ANN. § 35.2269 (2010): Kv.
REV. STAT_ANN. § 600.020 (West 2010): LA CHILD. CODE ANX. art. 1015 (2010) MICH.
(CoNP. LAWS SERV. § 712A.19b (LexisNexis 2010; MONT. CODE AN. §§ 41-3-423, 41-3.
609 (2010); N.H. REV. STAT. ANN. § 170-C:5 (2010); N.D. CaNT. CODE §§ 27-20-02, 27-20-
44 (2010): OFI0 REV. CODE ANN. § 2151411 (LexisNoxis 2010); OKLA_ STAT. it 10A,
§ 7006-1.1 (2010); OR. REV. STAT. § 4195502 (2010): P-R. LAWS AN, tt. 31, §§ 634,
634b (2010 R1GEN.LAWS § 16-7-7 (2010);.D. CODIFIED LAWS §§ 26-8A-26.1, 26-8A.27
(LioxisNexis 2010); TENN. CODEANN. § 36-1-113 (2011); TEX_FAM. CODEANN. §§ 161.001,
161.002(b), 161.007 (West 2010); UTAH CODE ANN. § 75-6-508 (LexisNexis 2010): Wo.
STATANN.§ 11-2.809 (2010); Rose, supra note 28, at 178; Stephanic Sherry, When Jail
Fails: Amending the ASFA to Reduce its Negative Impact on Children of Incarcerated
Parents, 18 FA\. Cr. REY. 380, 38283 (2010).
69, Halperin & Harris, supra note 67, at 340.
2012] “THE GOOD MOTHER" 173
inprison with a minor child reported having a child in a foster care sys-
tem. As primary caregivers, women are more frequently faced with
having theirchildren placed in foster care than men, and that number
hasbeen increasing over time.” Even when extended family is avail-
able to help care for these children, the family may be too stressed by,
economic and other factors to provide adequate care without signifi-
cant state assistance.”” Many children, like Omarian, are placed with
relatives when their mother is incarcerated.” However, much like in
Omarian’s case, alarge percentage of these children eventually end up
in state care.”
This breach in familial support is primarily an issue for women
rather than men (poor women rather than the well-off) and can be
exaggerated by substance abuse problems, a history of child or do-
mestic abuse, and mental illness.” One recent study of incarcerated
women in Illinois found that the majority of women had a child in
state care prior to the woman’s imprisonment.® The reliance on foster
care prior to incarceration may be related to behaviors and conditions
that eventually led to the arrest and incarceration of the mother. Be-
haviors such as drug use and illegal behaviors which may be related
tothe underlying causes of these women's incarceration may have led
to their children entering foster care some time prior to the women’s
incarceration.” The child welfare system is ill-equipped to deal with
70, GLAZE & MARUSCHAK, supra note 3, at 5 see also MUMOLA, supra note 16, at 4.
71, Beckerman, supra note 41, at 10; see Dalley, supra note 61, at 14 (noting that
when mothers are incarcerated children often end up in foster care).
72. Joremy Travis et al Families Left Behind: The Hidden Costs o Incarceration and.
Reentry, URBAN INST. JUSTICE POLICY CTR. (Juno 2008), http/iwwo urban orgluplondedpdf
1310882 families_left_bohind.pdf; sce also BERNSTEIN, supra note 16, at 144; MUMOLA,
stpra note 16, at 1 (reporting figures for parents incarcerated in state prison); Bary,
supra note 61, at 148; Beckerman, supra note 41, at 10; Block & Potthast, supra 41, al
561; Day, supra note 61, at 226; Ross, supra note 23, at 6.
73, In ro Omarian R No. H14CPOG00S6144, 2008 Conn. Super. Ct. LEXIS 1427, at
(Conn. Super. Ct. Jure 2, 2008); e also State Dep'tof Children's Servs. v. V.N., 279
.84 306, 307 (Tonn. Ct. App. 2008) (stating that the grandmother had custody of the.
minor child while the mother was in prison, the child was placed with an Aunt when the
grandmother was jailed on a DUI charge, and the child was placed in state care when
the aunt was arrested for a DUD; Block & Potthast, supra note 41, at 562.
74, See BERNSTEI, supra note 16, at 144; MUMOLA, supra note 16, at 1 (reporting
figures for parents incarcerated in state prison); Barry, supra note 61, at 148; Beckerman,
supra note 41, at 10; Block & Potthast, supra note 41, at 562; Day, supra note 61, at 226;
Loper, supra note 43, at 91; Ros, supra note 23, at 6.
75. Angola Wolf ot al, The Incarceration of Women in California, 13 U F. L RY.
139, 14243 (2008).
76, Moses, supra note 27, at 95.
77, Mary Barr, The Faceless Offender: The Effects of Incarceration on Families,
Women, and Minoritiesin 2 ATLA 2001 ANNUAL CONVENTION REFERENCE MATERIALS 2071
(Assn of Trial Lawyers of Am. od, 2001), available at Westlaw ATLA-CLE (stating that
85% of incarcrated women are non-violent drug offenders); Woll et al, supra note 75,
174 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
incarcerated parents and does not provide for long-term childeare
needs. The chronic conditions imprisoned mothers often face and the
lack of childeare during periods of incarceration creates a need for ex-
tended care for the children of incarcerated mothers.” However, cur-
rent policies are inapposite to these needs.” These families may be
trapped in a cycle of poverty, addiction, child and domestic abuse, and
mentalillness which makes them vulnerable to arrestand subsequent
incarceration.” At the same time, federal and state law and policy
increase the likelihood that they might lose their parental rights.”
The federal statute designed to make permanency “in a safe and
stable home' ... the goal for all of the children who enter foster care”
makes it difficult for incarcerated women to retain their parental
rights.” The Adoption and Safe Families Act of 1997 (‘ASFA”) creates
incentives and places pressure on states to move children from state
care to permanent homes under a time-table.* According to the ASFA,
permanency hearings must be held within twelve months of theinitial
142 (‘Imprisoned women also tend to have .. significant substance abuso issues ).
78, Halperin & Harris, supra note 67, at 340 (asserting that “child welfare policies
governing the management and ultimate disposition of these children have not been
tailored to the circumstances of parental incarceration’); see also Genty, supra note 40,
at 545 (stating that given the lack of onsistent formal mochanisms o track the children
of the incarcorated, these statistics may under report the numbor of children of in-
carcorated parents who are i foster care)
79, Moses, supra note 27, at 95.
80 MUMOLA, supra note 16, at 1 (finding that 10% of mothers and 2% of fathers in
State prison report a child living in a foster home or agency).
81, Jano C. Murphy & Margaet J. Potthast, Domestic Violence, Substance Abuse,
‘and Child Welfare: The Lagal System’s Response, ). HEAUTH CARE L. & POL'Y 88, 91-95
(1999). The authors noto the use of drugs and alcohol by domestic viclence victims and
“make them particulaly unsympathetic parties in abuse and neglect proceedings.” Id
at 94 Wolf et L, supra note 75, at 143 (fnding that women may rely on illegal drugs to
self modicate” for dopression, stross, oF emotional pain caused by abusc).
82, Nell Bernstein estimatos that “thirty-four states now have statutes in place that
explicitly cite parental incarceration as s criterion for termination of parental rights.”
BERNSTEIN, supra note 16, at 150; see also Dalley, supra note 61, at 16-17. A number of
states find incaceration i an insufficient basis for terminating parental rights but stll
Toolk to efforts made by the parent while imprisoned to maintain the parental bond. Itis
uncloar how realisti theso expectations are given the barriers fo incarcerated mothors.
to maintaining contact with their children. Se, ., Adoption of Baby Boy A.v. Catholic
Sor. Serv. of the Dioceso of Harrisburg, Pa, Inc., 517 A.24 124445 (Pa. 1986) (holding that
a parent’s responsibilities are not tolled during incarcoration, and thereforo “we must
inguire whether the parent has utlized those resources at his o her command while in
prison [t0 continu a close rolationship with the child"); In re LG, 939 A.D.24 950,953
(Pa. Super. Ct. 2007) (Incarceration alone is not sulficient to support termination.”)
3. Ross, supra note 23, at 178 (quoting Exeeutive Memorandum on Adoption and
Alternate Permanent Placement of Children in the Public Child Welfare System, 32
Weekly Comp. Pres. Doc. 2513 (Dec. 14, 1996).
4. Adoption and Safe Familics Act of 1997, Pub. L. No. 105-89, §§ 201-03, 305(6)(2)
(D), 111 Stat. 2115 (codified as amonded in seattored sections of 42 U.S.C. (1997)).
2012] “THE GOOD MOTHER" 175
removal of the child out of the home and into foster care.”” Children
who are out of the home and in foster care for fifteen of the last
twenty-two months must be moved toward permanency, and the ASFA
requires states, with some exceptions, to file petitions to terminate
parental rights.** State agencies are required to make “reasonable
efforts” to reunite families and to maintain family ties *” However,
what constitutes “reasonable efforts” is left up to the states and in-
dividual state agencies to define.* A number of researchers have
been eritical of the “reunification” efforts of state social welfare agen-
cies and suggest a lack of sufficient and consistent effort to reunite
troubled families.* These concerns are magnified in families in which
the separation between parent and child is a result of a parent’s incar-
ceration. Far too frequently, there is insufficient support for parents
who, because of their incarceration, are unable to follow a perma-
nency plan put in place for them by case workers.
While the ASFA may have been motivated by good intentions to
benefit children, the intersection of federal and state law may be re-
sponsible for the significant increase in the termination of parental
rightsof incarcerated mothers.” A significant number of states permit
5. 1d. § 302. The Act also “awarded states $4,000 per adoption in excess of the stato’s
average numberof adoptions prior 0 1997." Will L. Crossley, Defining Reasonable Eforts:
Demystifying the State’s Burden Under Federal Child Protection Legislation, 12.B.U. PUR,
INT. L1 259, 278 (2009)
6. Adoption and Safe Families Act § 103; Crossloy, supranoto 85, at 27879 (‘A state
can bo excused from this obligation if: () the state has placed the child in the care of
relative; (2) the state can provide a compolling reason for maintaining the parental
relationship; or (3) the state has failed to provide reasonable efforts to reunite the
family.” (citation omitted)). Crossley eritiques the “reasonable cfforts” exception of the.
ASFA as “a hollow requirement” since it “stresses terminating parental rights over
providing services . [and] only applies o the failure to provide those services the state.
deems nocessary.” and provides litle guidance to the states about how to fulfll the
requirement. 1d. at 292 Halperin & Harris, supra note 67, at 340 (axguing that the
failure to address the needs of incarcerated mothers with children in foster care
compromises the women's rights as parents).
7. Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, § 101,94
Stat. 500; Benites, supra note 16, at 205,
8. Benitos, supra note 16, at 204-05.
89, BERNSTEIN, supra note 16, at 15152,
90._1d. at 149.
‘Many prisoners do stints even for minor infractions that exceed ASFA'ssi.
and fifteen-month time limits. In New York state, more than 90 percent of
women convicted of felonies, ncluding low-level noviolont erimes, will serve
at least ighteen months—three months more than the longer o the ASFA
time limits. Nationwide, the average term being served by parents in state
prison is eighty months.
1d; Beckorman, supra note 41, at 12; Block & Potthast, supra note 41, at 562-63; Halperin
& Harris, supra note 61, at 340 (noting that “the number of children with parents in
prison has become an increasingly larger proportion of all children in nonrelative foster.
care”); Benites,supra note 16, at 218, In fact some believe the increase may be as much as
176 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
courts to weigh incarceration as a factor in assessing whether paren-
talrights should be terminated.” The standards for determining when
a parent’s right to raise their child should be terminated based on,
incarceration are varied and vague.” States typically apply a two
step process for determining whether to terminate parental rights.
First, a finding that the parent is unfit or unsuitable is made under a
clear and convineing standard.* Then, ifa parent is found unfit, most
states weigh whether terminating parental rights would be in the
childs best interests.” However, states differ sharply in the applicable
standard of review and in how fitness is determined.* In states in
250%. Genty, supra note 21, at 1678; Travis, supra note 16, at 34
91. See, .. KAP.v. DP.and CP.,11 S0.3d 812, 819 (Ala. Civ. App. 2008) ([Tlhere
has never been a dispute in our cases that current imprisonment extending for o long
period during the child’s minority may bo a sufficient basis for a finding that the im.
prisoned parent is unable or unwilling to discharge his o her responsibilities to and for
the child, especially when the evidence shows that the imprisonment prevents the parent
from performing ordinary parental duties.’); RM. v. Dep'tof Children & Families, 847
8024 1103 (Fla. Dist. Ct. App. 2009).
92. See Kennedy, supra note 26, at 97-100.
93, Quilloin v. Walcott, 431 U.S. 246, 255 (1978) (‘We have lttle doubt that the Due
Process Clause would be offended il a State wore to attempt to forco the broakup of a
natural family, over the objections of the parents and the childzen, without some show-
ing of unfitness and for the sole reason that to do so was thought to be in the children's
best interest.” (quoting Smith v. Org.of Foster Familics, 431 US. 816, 862-63 (1977
(Stewart, 1, concurring). “[TJhe interest of parents in their relationship with their chil-
dren s sufficiently fundamental tocome within the fnite class of berty interests protected
by the Fourteenth Amendment.” Santosky v. Kramer, 455 U S. 745, 774 (1982) (Rehnquist,
3., dissonting; see also ML B.v. S.L.J, 519 U.S. 102, 11718 (1996) (4] parent’s desire
for and right o the companionship, care, custody, and management of his or herchildren”
is an important intorest . . ” (quoting Lassiter v. Dep't of Soc. Serva., 452 US. 18, 27
(1951). The Supreme Court recognized that it is parent’s fundamental right “to make
decisions concerning tho care, custody, and controlof their children.” Troxel v. Granvill,
530 U.S. 57, 66 (2000) (citing Stanley v. linois, 105 U.S. 645, 651 (1972); se o2, Prince
. Massachusetts, 321 US. 158, 166 (1944) (It is cardinal with us that the custody. care
and nurture of the child rosido first in the parents, whose primary function and frecdom
include preparation for obligations the state can neither supply nor hinder.”); Pierco v
Sac'y of Sisters, 268 U.S. 510, 534-36 (1925) (finding that the Oregon Compulsory.
Education Act violated parents ‘liberty”interests in raising and educating their childron);
Meyer v. Nebraska, 262 U.S. 390, 399 (1923) stating that the right o raise one's children
“essential)
94, Santosky, 455 U.S. at 758 (rejocting New York's use of a “preponderance” standard
in parontal termination proceedings as a violation of a parent’s due procoss rights).
95. Id. at 779-50.
96. See, ., COLO. REV. STAT. § 19-3-604(1)(IID) (2011) (‘The court may order a ter
mination ofthe parent child logal relationship upon the . [ljong-torm confinement of the.
parent of such duration that the parent i not elgible for parole for at loast six yoars .._or
ifthe child s under six years of age ... the long-term confinement of the parent of such
duration that the paront is not ligible for parole for at least thirty-six months... ); KY.
REV. STAT. ANN. § 600.020(2)(b) (LexisNexis 2011) (“The parent is incarcerated and will
be unavailable tocare for the child fora period ofatleast one (1) vear from the dateof the
childs entry into foster care and there is no appropriate relative placoment available
2012] “THE GOOD MOTHER" 177
which incarceration of the parent plays a role in determining fitness,
there is a lack of consistency among the states as to whether courts
should weigh the nature of the crime committed, the length of incarcer-
ation, the fact of incarceration, or the parent's efforts to communicate
with her child after being imprisoned.” The fitness and the best inter-
ests measures used by courts in parental termination proceedings
are vague and rely greatly on the exercise of judicial discretion.”
Drug laws and harsh sentencing policies for drug-related and
nonviolent crimes result in lengthy sentences for a great number of
imprisoned women.” Since the average prison sentences are longer
than the twenty-two month period specified in the ASFA,"™ the av-
erage incarcerated mother may be faced with efforts to terminate
her parental rights primarily because of the length of her incarcera-
tion alone.! In fact, one researcher reported a 250 percent increase
in cases terminating parental rights due to parental incarceration. "
While termination statutes are gender neutral and are applied to
fathers as well as mothers, they impact women more significantly
since women are more likely to be single parents who lived with
their children immediately prior to incarceration.” The result is to
undervalue the relationship between mother and child and to allow
the termination of parental rights to become a de facto punishment for
the erimes for which she was convicted.” The move to permanency
during this period of time."); OHIO REV. CODE ANN. § 215L414(E)12)-(19) (LexisNexis
2011) (“The parent i incarcarated ... and will not be available to caro for the child for at
loast ighteen months ... or] [tlhe parent is repeatedly incarcerated, and the ropeated in-
carcoration provents the parent from providing care for the child."); OKLA.STAT. tit. 10A,
§ 14-904(12) (2011 (tating that one consideration is“the duration of incaxceration and ts
detrimental effect on the parentichild relationship’); TEX. FAM, CODE ANS. § 161001(1)
(Q) (West 2011) (“The court may order termination of the parent child relationship
if the court finds by clear and convincing evidence [that the parent has] knowingly
engaged in criminal conduct that has resulted in the parent’s . . . confinement or
imprisonment and inability to care for the child or not loss than w0 yoars from the date
of filing the petition."; UTAH CODE ANN. § 78A-6-508 (LexisNexis 2011) (terminating
parental rights if the parent is incarcerated for such a time “that the child will be
deprived of a normal home for mare than one year’).
7. See BERNSTELN, supra note 16, at 150-51 (discussing differences betsween the
Goorgia and New York systems); Dalloy, supra note 61, at 19-
98. See Kennedy, supra note 26, at 98-99.
99 MUMOLA, supra note 16, at 5 Wolf et al, supra note 75, at 14041
100, Travis, supra noto 16, i 84; see also Crossley, supra noto 85, at 292
101, BERNSTEIN, supra note 16, at 148; see supra note 90 and accompanying tex.
102 Travis, supra note 16, at 34 (citing Genty, supra note 21, at 1675).
103 Baunach, supra note 46, at 157; Joseph Murray & David P. Farrington, The
Effects of Parental Imprisonment on Children, in 37 CRIME AND JUSTICE: A REVIEW OF
RESEARCH 133, 179 (Michael Toney od., 2008).
101, Genty, supra note 21, at 167879 (noting that family separation is a collateral
consequence of incarceration, inding that damage to the family relationship is often an
indirect consoquence of incarceration).
178 WILLLAM & MARY JOURNAL OF WOMEN ANDTHELAW [Vol. 18:161
under the ASFA does not adequately reflect the reality of prison sen-
tences currently imposed and ignores the honds between mother and
child that developed prior to incarceration.
In addition, the fact of incarceration and the length of sentences
create barriers to parenting from prison that uniquely affect women
Prison facilities for women are frequently placed farther from their
‘homes than prisons for men. " In fact, most incarcerated mothers are
imprisoned more than 100 miles from their families, while federal pris-
oners are housed at far greater distances not infrequently in states
other than their home state." This adds to the high cost of staying
in touch by making it more expensive and time consuming to visit a
female prisoner.'”" In addition, prison and jail facilities are designed
with security as a primary goal and do not typically provide convenient
and family-friendly visiting areas.” Telephone contact is maintained
through collect calls at exorbitant rates, and visiting is often made so
difficult, expensive, and time consuming that many families cannot,
afford to do so often.
105. BERNSTEIN, supra note 16, at 78. Prisoners may also bo housed outside the state
i which they live and were sentenced. . at 90-91; see also MUMOL, supra note 16, at 5
(observing that 64°% of parents incarcerated in state prizon and 0% of parents incarcer-
ated in federal prison are housed more than 100 miles from their st place of residence):
Travis, supra note 16, at 37 deseribing the large costto families of maintaining telephone
contact, and new programs that use the internet to improve family contact with prisoners
as well as programs to bring children to distant prisons).
106. It is estimated that 607% o parents incarcerated in state prison and 84% of parents
incarcerated in federal prison are housed moro than 100 miles from the children. Sec
MUMOLA, supra note 16, at 5.
107. Block & Potthast, supra note 41, at 565; Genty, supra note 21, at 1675; Denise
Johnston & Katherine Gabel, Incarcerated Parents, in CHILDREN OF INCARCERATED
PARENTS 1617 (Katherino Gabel & Donise Johnston eds., 1998); Travis, supra note 16, at
36; see also Murray & Furrington, supra note 103, at 18889 (suggesting that prisoncrs
would be better able to cope after their release if funds wero provided during their
incarceration to allow family to visit). Bornstein asserts that the cost ofcollectcallsfrom.
prison is “as much as twenty times that of standard collet calls” in an arrangement that
provides large profits for states as well as the phone companics. BERNSTEIN, supra note.
16, at 86. Som families have unsuccessfully attempted to sue to obtain compensation for
xorbitant telophon fecs. Se e.¢ Zachary R. Dowdy, Families o Prisoners Sue State Oer
Phone Charges, NEWSDAY, Oct. 12, 2009, at A16, available a bitp:iwww nowsday.
comnowsfrogion-stateffamilies-of prisonerssucstatc-ovor-phone-charges-1 1519293; sce
also Nicholas H. Weil, Dialing While Incarcerated: Calling for Uniformity Among Prison
Telephone Regulations, 19 WASH. U.JL. & POLY 427, 131 (2005) (noting the number of
ircuit Courts that have heard constitutional claims for inmates’rights to phone calls)
Keeping in Touch with a Parent in Prison, N.Y. TIMES, Jan. 14, 2006, at AL4 (reporting
on an effort in Congross o requir fair telephone rates in prisons).
108. Arditti, supra note 37, at 116; Travis, supra note 16, at 36-37. But sce Tanya
Krapat, Invisibilty and Children's Rights: The Consequences of Parental Incarceration,
29 WOMEN'S RTS. L. RP. 39, 42 (2007) (discussing enhanced visitation programs in New
York, Tennessee, Arkansas, and California).
109. BERNSTEIN, supra note 16, at 86; Arditt, supra note 37, at 116; Samets, supra
note 37, at 298, 301,
2012] “THE GOOD MOTHER" 179
Areview of cases reveals that courts can be eritical of parental
efforts to maintain a relationship with their children while incarcer-
ated and have been willing to terminate parental rights in many of
these cases."™ In reviewing termination appeals, some courts have
found that incarceration does not discharge a parent’s statutory obli-
gation to provide for her child with a continuing relationship through
communication and visitation." For example, some state courts have
held that inearceration is no excuse for a parent failing to communi-
cate and keep contact with her child."* Courts reason that a parent
who s prevented from maintaining meaningful contact with a child
by his incarceration and who thereby risks having his parental rights
terminated “cannot object to the natural consequences brought about
by his own voluntary commission of criminal acts.”"* Courts are also
skeptical of mothers who fail to get the assistance they need until
they are imprisoned, reflecting a disconnect between the state’s ex-
pectations of mothering and the reality of parenting for poor, single
mothers."™ For example, in In the Interest of E.M.H., Minor Child,
BB, the Iowa Court of Appeals affirmed a decision to terminate
a mother’s parental rights.""* The court found:
The State offered Brandi a wide array of services, which she did
not participate in or respond to, beginning in 2005 with her first
child. ... [S]he did not begin participating in substance abuse
treatment until after she was incarcerated. However, once incar-
cerated, Brandi did become involved in a substance abuse treat-
‘ment program and participated in a parenting class at the prison.
110. See, g, In re J L., 924 N.E.2d 961,968 (1L 2010). Note that the Suprome Court
in Santosky . Kramer requires courts determining parental termination matters to
require “clear and convincing” evidence that the parent s unfit. Santosky v. Kramer, 155
US. 745, 769 (1982). However, th heightoned standard alono has beon insufficient to
prevent torminations primarily due to separation as a result of incarceration.
111, Inre B.F, No. 2008 CA 11, 2005 WL 4447700, at *4-5 (Ohio Ct. App. Oct. 5, 2008)
(finding clear and convincing evidonce that it was in the children’s bost interest to torm.
nate the mother's parental rights where the mother was incarcorated, could have chosen
to participate in a residential treatment program but decided to go t prison, was not due
tobe released from prison until children would have been in agency's custody for approx.
imately 18 months, and had made little if any, progress on her case plan).
112 In re Omarian R, No. H14CPOG0OS6144, 2008 Conn. Super. Ct. LEXIS 1427, at
“10-12 (Conn. Super. CX. June 2, 2008).
113, In re TGY., 631 SE2d 467, 471 (Ga. Ct App. 2006): s also In re TBR., 480
824901, 906 (Ga. Ct. App. 1997) (holding that “eriminal history of ropetitive incar-
cerations for the commission of criminal offenses . . . constitutes an additional factor
which may be considored” in determining whether termination of parental rights is in
the best interests o the child).
114, See, e In re BF, 2008 WL 4447700, at *3 (affirming the termination of the
parental rights of an imprisaned mother who chose prison in place oftreatment and later
nrolled in parenting class in prison)
115, In re EALH,, No. 080701, 2008 WL 2906510 (Iowa Ct. App. 2008 July 50, 2008).
180 WILLLAM & MARY JOURNALOF WOMENANDTHELAW [Vol. 18:161
She also obtained her GED and maintained a job at the prison
facility. ... [W]e conclude the State's efforts towards reunifica-
tion throughout the juvenile court proceedings were reasonable.
Brandi, however, did not make it a priority to take advantage of
the offered services until it was too late. . Brandi's incarceration
does not excuse her inability to care for Emily."*
The court makes no examination of whether environmental
stressors made it difficult for Brandi to take advantage of the assis-
tance being offered until separated from her community through
incarceration."” The factors that may have led to and fueled her
substance abuse are not assessed, nor does the court reckon with the
known links between a history of abuse and substance abuse."* Given
the magnitude of the issues and rights at stake, a more thorough in-
quiry into the causes of Brandi’s conduct, and what community re-
sources could be made available to her to keep the family together,
should have oceurred. Parental termination statutes give judges a
great deal of discretion in weighing incarceration as a factor and the
decision s “value-laden. . based on social policy, competing priorities,
and law.”"* Under this approach, incarceration may be seen as a sign
116, Id. at *2-3
117, Id. (containing no discussion of the issue of environmental factors related to
substance abuse).
118, See Murphy & Potthast, supra note 81, at 91-95; Wolf et al, supra note 75, at 143.
119, Matthew B. Johnson, Examining Risks to Children in the Context of Parental
Rights Termination Proceedings, 22 N.Y.U. REV. L. & Soc. CHANGE 397, 402 (1996). The
amount of time that triggers state intorvention varies from stato to state and from case.
tocase. Sce,e.g,,COLO. REY. STAT. § 19-3-604(1)(B)III) (2011) (“Tho court may order the.
tormination of the parent-child logal relationship upon .. [ong-term confinement of the.
parent of such duration that the parent is not eligible for parole for at loast six years
o .if the child is undor six years of age ... the long-torm confinement of the parent
of such duration that the parent is not ligible for parole for at least thirty-six months
") K¥. REV. STAT. ANN. § 600.020(2)b) (LoxisNexis 2011) ("Th parent is incarcerated.
‘and will be unavailable tocare for the child for a period of at least one (1) year from the
date of the child's entry into foster care and there is no appropriate relative placement
available during this period of time); OHIO REV. CODE ANK. § 2151 414(E)(12)-(13)
(LoxisNexis 2011) (“The parent is incarcerated . . and will not be available to caro for
the child for at least eighteen months .. or] [t]he parent is repeatedly incarcerated, and
the ropeated incarceration provents the paront from providing care for the child."); OKLA.
STAT.tt. 104, § 1-4-904(B)(12) (2011) (stating that one consideration is ‘the duration of
incarceration and its detrimental effet on the parentchild relationshiy); TEX. FA. CODE.
AN § 161.001(1)(Q)E) (West 2011) (“The court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence . . that the parent has]
knowingly engaged in criminal conduct that has resulted in the parents ... confinement
or imprisonment and inability t care for the child for natless than two years from the date
of filing the petition.”); UTAH CODE ANN. § T8A-6-508(2)(e) (LexisNexis 2011) (allowing
termination i parents are incarcerated for such s time that the child wil be deprived of
a normal home for moro than one year.”). Somo states allow courts to consider incar-
coration of a substantial or extended period of time. See, ¢.¢., ARK. CODE ANN. § 9.27.
341(6)(3)(B)(vii) (2011) (“The parent is sentenced in a criminal proceeding for a period
2012] “THE GOOD MOTHER" 181
of unfitness, abandonment, or neglect, all of which imply the need to
terminate parental rights to safeguard the child.'* These statutes
permit courts to terminate rights of an incarcerated parent when the
court determines that “continuing the parental relationship would be
harmful to the child,” which, under this view, does not require proof
that actual contact is detrimental but may presuppose harm based
on factors such as the length of the sentence and the amount of con-
tact between the parent and child."*
The focus in the inquiry in termination proceedings is placed on
the culpability of the mother and not the “nexus” between the
mother’s behavior and any direct harm to the child.'** The systemic
undervaluation of these connections may be the result of a persis-
tent and narrow mythology that idealizes mothers and that is not
of time that would constituto a substantial period of the juvenile's ife”): DEL. CODEANX.
it 13,§ 1103@)(5)(@)®) (2011 (‘The [paren] s incapable of discharging parentl rospon.
siblites due to extended or repeated incarceration.”); FL, STAT. ANY. § 39.506(1)(d)(1)
(LexisNexis 2011) (-The period of time for which the parent is expected tobe incarcerated
will constitute a substantial partion of the period of time before the child will atain the age.
of 18 years .. ); L. CHILD. CODE ANN. art. 1015(6) (201) ({TJhe parent has heen con-
victed and sentencod o a period of incaceration of such duration that the parent will not
e able to care for tho child for an extonded period of time ... ") R1 GEN. LAWS § 15-7-
7(a)(2)() (2011) (stating that “imprisonment, for a duration as to ronder it improbable for
the parent to care for the child for an extended period of time.” is one consideration); S.D.
CODIFIED LAWS § 26-8A-26.1(1) (2011) ([T]ho court may find that good cause exists for
termination of parental rights o a parent who .. (s incarcerated and s unavailable to
caro for the child during a significant period of tho childs minority, considering the childs
e and the child's need for care by an adult.).
120. See, .., Johnson, supra note 119, at 420-421 (describing a mother who lost
parental rights,in part, because of the fact of her incarceration).
121 RM. v. Dep'tof Children & Families, 847 So. 24 1103, 1104 (Fla. Dist. Ct. App.
200); KAP. v. DP. 11 So. 3 812, 819 (Ala. Civ. App. 2008).
[Tlhere has never beon a dispute in our cases that current imprisonment
extending for a long period during the child's minority may be a sufficient
basis for a finding that the imprisoned parent is unable or unwilling to
discharge his or her responsibilties o and for the child, especially when the
ovidenco shows that the imprisonment prevents the parent from performing
ordinary parental duties
1.
122. See CoLO. REY. STAT. § 19-3-604(1)(B)ID (2011); Thompson v. Tex. Dep't of
Family & Protective Sarvs, 176 S.W.3d 121, 126 (Tex. App. 2004) (cting TEX. FaM. CODE.
ANN. § 161.001(1)(G) (2002); see, .., In re CALO., 901 So. 24 1168, 1171 (La. CL. App.
2003) ([T mprisonment may not be used as an excuse to escape parental obligations. )
‘Adoption of Serge, 750 N.E.2d 498, 504 (Mase. App- Ct. 2001) (-Physical unavailability of
the parent to provide day to day caro for the child, including for reasons of incarceration,
was relovant ovidonce of unfitness ") Inre sabella C., 852 A.2d 550,558 (R 2004) ([ Tjhe.
trial justiceis ot required to consider parcle ligibility, he o she is only required tocon.
sidor the probable duration of imprisonment at the time of the termination.” (quoting In
re Mercodos V., 788 A.2d 1152, 1153 (R.1. 2001)): Jane C. Murphy. Legal Images of
Motherhood: Conflicting Definitions from Welfare “Reform,” Family and Criminal L,
53 CORNELLL REV. 655, 710 (1998) (explaining that in child welfare procecdings, courts
foeus o “mothrs ifestylos and child-rearing practices rather than on harm to the child).
182 WILLLAM & MARY JOURNALOF WOMENANDTHELAW [Vol. 18:161
sufficiently broad to view incarcerated women as good mothers. ™
Nor does it seem to leave room for a notion of community mothering
orof working within communities to build community-based support
for mothers and families in need of assistance. Motherhood has car-
ried a sense of idealism against which many have either rallied or
struggled.'** It carries with it cultural and political meaning and has
been a source of protection and derision for many.'” Mothers who are
able to mimic the societal ideal of mothering receive the greatest,
praise and protections although active debate about ideal mothering,
continues.** Women, even those who work outside the home, are
still largely viewed as “the keeper of the home.”'*” Women who defy
cultural norms about mothers and mothering often face criticism
and some level of resistance.'* Incarcerated women challenge soci-
etal norms about mothering and stand counter to generally accepted
views about how “good mothers” conduct themselves.
More than women who work or women who in other ways chal-
lenge societal perceptions of womanhood, incarcerated women more
directly challenge established perceptions about families, parenting,
123, Brenda V. Smith, Reforming, Reclaiming or Reframing Womanhood: Reflections
on Advacacy for Women in Custody, 29 WOMEN'S RTS. L. REP. 1, 5 (2007) (noting the
histary of the women's movement and the conflct between the focus on women in prison
and motherhood and the failure of women in prison to conform to motherhood ideals).
124, See SUSAN J. DOUGLAS & MEREDITH W. MICHAELS, THE MOMMY MYTH: THE
IDEALIZATION 0F MOTHERHOOD AND HOW I HAS UNDERMINED WOMEN 22-23 (2004)
(positing that mothers are subject to s heightoned standard of conduet that can gonerate
negative responses when those standards are not met); Murphy, supra note 122, at 761
(noting the "law's view of mother as sclf-sucrificing nusturer and s equal wago earner’).
125. DOUGLAS & MICHABLS, supra note 124, at 206.
126. For example, works by a “Tiger Mother™ who was secn as too demanding, and an
other who opted o give up custods of her children to her husband in order to pursue her
carcer when she decided she did not want to be a mother any more, received considerable
attontion and eriticism for their style of mothering. ANY CHUA, BATTLE HYMN OF THE.
‘TIGER MOTHER (2011) (telling a mother’s story about parenting and raising children the
Chinose” way which involves strict and rigid rules and expectations); Rahna Reiko
Rizzuto, Why 1 Left My Children, SALON.COM (Feb. 28, 2011), httpiiww.salon comflife
Ifoature/2011/02/28/leaving_my_children. The author gave up custody of her two sons
when she realized she did not want tobe a mother anymore and preferred instead tofocus
on her carcer. Id; Kate Zorniko, Retreat of the ‘Tiger Mother, N.Y. TIAES, Jan. 16, 2011,
at ST (noting the controversial nature Chua's book).
127. ARLIE HOCHSCHILD WIT ANNEMACHUNG, THESECOND SHIFT: WORKING PARENTS
AND THE REVOLUTION AT HOME 15-16 (1989); Jill Laster, Time Crunch for Female
Scientists: They Do More Houseucorl: than Men, CitgoN. HIGHER EDUC. (D.C., Jan. 19,
2010, httpichronicle.comarticle/Femalo-Scientists- Do-Morc/63641/; Deborah Solomon,
Women's Work: What Men Won't Do, WALL ST. J., Aug. 6, 2009, http:/iblogs.wsj.com
Jeconomics/2009/08/08womens-work what-men- want-dof# (Jiscussing Bureati of Labor
Statistics Report showing women do more household work than men).
128 DOUGLAS & MICHABLS, supra note 124, at 22-23
129, Id.
2012] “THE GOOD MOTHER" 183
and care-taking.™ These women are geographically distant from
their children. ™ Visitation and physical contact with their children
is out of their control and, according to studies, is often inconsistent
at best but more often minimal or nonexistent.”* Communicating
through telephone calls is an expensive and limited option, and
incarcerated women may find sending cards and letters a difficult
and ineffective means of expressing their complicated feelings for
their children and about the situation in which they find them-
selves.* Women who commit crimes, “are viewed as more pathologi-
cal” than men who commit crimes.** Women who commit crimes,
are incarcerated, and fail to maintain regular communication with
their children may find it difficult to overcome common understand-
ings of how “good mothers” behave. Even today, the role of mother
is still a defining characteristic for women, and mothers who fall
short of expectations are viewed negatively.'” Women are judged,
in part, by their devotion and commitment to their children and are
not good mothers until they devote most of their time and energy to
being mothers.”
Termination proceedings result in an evaluation of mothering
that holds incarcerated women to a high and unrealistic standard
and creates timetables for addressing shortcomings that fail to pro-
vide sufficient time to address the difficult and wide-ranging issues
these women may be facing. In addition, the models of mothering to
which these mothers are held may reflect standards to which all
parents should aspire but are ones to which most mothers probably
fall short. For example, in In re J.L., in upholding the termination
of the parents’ parental rights, the Illinois Supreme Court noted
transgressions such as leaving a “knife on the table with the point
outward,” allowing the children to run “around wildly” and failing
to acknowledge children when they wanted to talk about their day
at school.”” While perhaps demonstrating errors in judgment, such
130. See STACEY L. SHIPLEY & BRUCE A, ARIGO, THE FEMALE HOMICIDE OFFENDER
SERIAL MURDER AND THE CASE 0 AILEEN WUORNOS xi-xii (2004).
131, BERNSTEIN, supra note 16, at 78; MUMOLA, supra note 16, at 5
132 BERNSTEIN, supra noto 16, at 78-81 (noting abstaclos to Tamily friendly visits
including bulletproof glass, lon lines, and a lengthy approval process, and humiliating
ccroening processes); Block & Potthast, supra note 41, at 566 (indicating that most vis-
iting rooms are uncomfortable and may heighten children's anieties about the visit),
133. See Block & Potthast, supra note 41, at 563-64; Luke, supra note 16, at 934
Samets, supra noto 57, at 296,
134, SHIPLEY & ARRIGO, supra note 130, at 11
135, See DOUGLAS & MICHAELS, supra note 124, at 22-23.
136. Id.
197, I re JL., 924 N.E.24 961, 964-65 (ILL 2010).
184 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
parenting failures seem to fall short of demonstrating a lack of
fitness to parent. Each of the transgressions cited by the court
almost certainly would not lead to a termination of rights had the
mother not had a history of incarceration, mental illness and domes-
tic violence.'**
The mother in In re J.L. admittedly falls far from an ideal of
mothering, but whether her failures should result in the permanent
severing of her parental ties to her children, and whether a middle
class woman would be held to the same standard, are important
questions that the court in the case is free to ignore, since the pre-
vailing standard does not require such an inquiry. ™ At issue in the
appeal was whether the parents had been given sufficient time to
address their parenting deficiencies, particularly given the mental
illness and abuse issues facing the mother.'* Even though the court
acknowledges the difficulties an incarcerated parent may face in try-
ing to improve his or her parenting skills, it concludes that the time
period a parent is given to make such progress is not tolled by the
time spent in prison." In fact, the court ultimately finds that ‘in
the interest of judicial economy,” it would not remand the case to be
decided, and it instead upheld the parental termination. "
The mother in In re J.L., like many incarcerated women, is deal-
ingwith a number of complicated and interrelated psychological and
mental health problems that are impossible to address in the time
periods prescribed by state and federal standards."* Incarcerated
women engage in high levels of drug and alcohol use and frequently
have histories of mental illness and abuse. " These women may find
it diffieult to overcome addiction and mental health issues within the
strict federal and state time-lines. In addition, they face the challenge
of countering the negative stereotypes about the kinds of individuals
who commit crimes, use drugs, and “allow” themselves to be abused.
Women of color may be most impacted by the intersection of
criminal law, child welfare policies and stereotyped thinking:
[Wlomen of color remain the most impacted by increased levels
of mass incarceration. These women are more often mothers of
138. See, e, In e Faith B., 832 N.E.2d 152, 159 (11l 2005) (holding that one fuctor
indicating unfitness [montal illnes] is not sufficient to terminate parental rights).
139, In re JL. 924 N.E.2d at 966-67.
140, Id. at 964-65.
141, Id. at 965-69.
142! Id. at 970.
143 Wolf et al, supra note 75, at 14243,
144, Id.
2012] “THE GOOD MOTHER" 185
dependent children. ... While they are more likely to be nonvio-
lent offenders, they are still viewed as a threat to the moral
conscience of the dominant society since they fail to meet the
standards of appropriate motherhood. "*
These women in prison face an additional layer of struggle
against stereotypes about women of color and poor women as moth-
ers.!* Stereotypes about race, ethnicity, and class may affect percep-
tions of mothering.'” Black mothers are often viewed as failing to
live up to society’s image of the ideal mother.'** Black mothers are de-
valued and fall short of the American ideal of motherhood; this has
its roots in slavery. As Patricia Hill Collins notes, African-American
women often struggle against:
[t}he traditional family ideal [that] assigns mothers full respon-
sibility for children and evaluates their performance based on
their ability to procure the benefits of a nuclear family household
Within this capitalist marketplace model, those women who'catch”
legal husbands, who live in single-family homes, who can afford
private school and music lessons for their children, are deemed
better mothers than those who do not."*
The devaluation of the images of poor mothers and mothers of color
creates opportunities for the vague standards for fitness and best
interest to adversely affect poor families and families of color. ™ The
stigma associated with being convicted of a crime, spending time in
prison, being a drug user, being poor, and/or being Black or Latina,
may affect how these women are perceived and the extent to which
145, MeGee et al., supra note 40, at 510 (citing Sharp & Ericksen, Inprisoned Mothers
and Their Children, in INVISIELE PUNISHMENT: THE COLLATERAL CONSEGUENCES OF
'MASS INPRISONMENT (B.H. Zaitzow & J. Thomas ods., 2003)).
146. See Dorothy E. Roberts, Motherhood and Crime, 79 10WAL. REV. 95, 108 (1993) (ex-
ploring the elfects of gender, race, clas, and nature of erime on criminal convictions)
Ihereinafter. Roberts, Motherhood and Crimel; Dorothy E. Roberts, Racism and
Patriarchy in the Meaning of Motherhood, 1 Av. U. J. GENDER & L. 1, 10-11 (1993)
[hereinaftor Roberts, Racism and Patriarchy].
147, Roberts, Motherhood and Crime, supra note 146, at 137 (Saciety s loss likely to
identify with criminal mothers than with other classes of criminals. ... Women viclate gen.
der norme when they engage in violence or abandon their children in pursuit of crime.”)
148 Murphy, supra note 122, at 691 (‘Poor minority women frequontly bear the pun-
ishmant for deviating from the stereotype of the ideal mother, whercas white middle-
class and wealthy womon reap the rewards for being good mothers”).
149, PATHICLAHILL COLLINS, BLACK FEMINIST THOUGHT: KNOWLEDGE, CONSCIOUSNESS,
AND THE POLITICS OF EMPOWERMENT 182 (2nd ed. 2000),
150. Annette R. Appell, Protecting Children or Punishing Mothers: Gender, Race, and
Class in the Child Protection System [An Essay], 48 S.C. L REV. 577, 585 (1997); Lonore M.
MeWey et al. Parental Rights and the Foster Care System: A Glinpse of Decision Making
in Virginia, 29.J. FAM. ISSUES 1031, 1047 (2008);see also Kennedy, supra note 26, at 103
186 WILLLAM & MARY JOURNALOF WOMENANDTHELAW [Vol. 18:161
they are viewed as capable mothers. These mothers may find it diffi-
cult to convince first social workers and later judges that they are
fit o suitable parents and often fall short of the “best interests” ideal-
ism inherent in the fitness and best interests tests applied in termi-
nation cases."” The result of devaluing motherhood by those in the
margins—women of color, poor women, incarcerated women—and
applying a best interests idealism to termination proceedings results
in greater numbers of terminations. However, the children affected
do not necessarily find permanent homes, and the number of chil-
dren in foster care continues to climb.'**
Incarcerated mothers are in greater need for assistance since
their children are more adversely affected by the incarceration of
their mothers than their fathers.'” Children of incarcerated mothers
may be at greater risk of troubled behavior than the children of in-
carcerated fathers, putting these children at greater risk for engag-
ing in criminal behavior and continuing a legacy of involvement with
the criminal justice system. " Moreover, studies seem to support the
idea that these children may be more easily pulled into a pattern of
“intergenerational” crime' and are more likely to engage in illegal
activity. ™ It is unclear whether this is the result of exposure to a par-
ent’s criminal behavior, poverty and related environmental stresses, or
other factors. ™ Women of color are at the greatest risk of having their
children placed in foster care."™ Children of color are removed from
151, See Kennedy, supra note 26, at 101
152. See Moses, supra noto 27, at 98 (*Perhaps most notable is that children of
incarcerated mothers were four times more ikely to be st ix’ foster care than all other
childron. .. Theso children linger in foster caro until they are 18 when they ‘uge out’ of
the system.”); Schetky ot al., supra note 27, at 367 (1S]tudies have shown that once a
child is placed in foster care, he ar she has a 50% chance of remaining there 3 years or
longor. Some studies oven suggest that a child who has been in foster caro for longer
than 18 months has a remote chance of being either adopted or returned home ” citation
omitted); Steven M. Cytryn, Note, What Went Wrong? Why Family Prescruation
Programs Faited to Achieue their Potential, 17 CARDOZ0 J.L. & GENDER 81, 9294 (2010)
(discussing foster care from its incoption and the growth o oster care ovor time).
153, Wolf et al, supra note 75, at 143,
Landrath & Lobaugh, supra note 57, at 157-¢
155. Halperin & Harris, supra note 67, at 335,
156. Landreth & Lobaugh, supra note 57, at 138; Luke, supra note 16, at 933; see also
Murray & Farrington, supra note 103, at 162.
157, See BERNSTEIN, supra note 16, at 14647, Foster care placement triggers the op-
ration offedoral provicions that sct time requirements for severing tho logal tios between
parent and child. Adoption and Safe Familics Act of 1997, Pub. L. No. 105-89, 111 Stat.
2115 (1997) (codified in scattered sections of 42 US.C. (1997); Murray & Farrington,
Supra noto 103, at 168, 171 (claiming that parental imprisonment is.a predictor but does
not necessarily have a causal effect)
168 MeGeo et al, supra note 40, at 510.
2012] “THE GOOD MOTHER" 187
their homes and placed in foster care at a disproportionate rate.””
These children are also more likely to have their legal ties with their
parents severed. " A numberof scholars have taken note of the dispro-
portionate involvement of the state in families of color and poor fam-
ilies and the greater rates at which their children are removed from
their homes and placed in foster care. "' It is not clear that the chil-
dren, their parents, or their communities are well served by these ef-
forts, and it is instead more likely that the permanent removal of these
children does significant harm.
Many of the women adversely affected by the intersection of the
increasing reliance on incarceration and the effort to achieve perma-
nency for children face a host of social and economic issues which
make it difficult for them to provide for their children." In fact, many.
come from communities that lack adequate housing, schools, jobs, and
drug and aleohol treatment centers.'*” The result is that these women
may find it difficult to provide for basic needs and get the assistance
they need to cope with the stresses of living at the margins of society
ina manner that would satisfy child welfare agencies and judges in
parental terminations proceedings.'** A disconnect exists between
what the federal and state standards and goals for child welfare ex-
pect of these mothers and what they can reasonably provide under
the circumstances and in the communities in which they often live.
An example of the creation of standards for parenting that con-
tribute to the termination of the parental rights of women who live
with incarceration as a fact of life is presented in State of Tennessee
Department of Children’s Services v. V.., which upholds the termi-
nation of parental rights of an incarcerated mother one month before
her release from prison.'™ The case is illustrative of the disconnect
159. See Dorathy K. Raberts, Child Welfare and Civil Rights, 2003 U_ILL. L REV. 171,
17278 (2003); Antoinette Greenaway, Note, When Neutral Policies Aren't So Neutral
Increasing Incarceration Rates and the Effect of the Adoption and Safe Familics Act of
1997 on the Parental Rights of African-American Women, 17 NATL BLACK L.J. 247,
25657 (2002-2004)
160. Roberts, supra note 159, at 172-73; Greenaway, supra note 159, at 236-57.
161, Roberts,supra note 159, at 17273 Greenaway, supra note 159, at 236-57.
162 REIMA, supra note 22, at 77110 (noting that for the same criminal behavior,
the poor are more likely to be arested, chargod, consicted, sentenced to prison, and aro giv-
en longer prison terms than members of the siddle and upper classes); see also Acoca &
Racder, supra note 52, at 137; John Hagan & Ronit Donovitzer, Collateral Consequences
of Imprisonment for Children, Communitics, and Prisoners, 26 CRIME & JUST. 121,
134-37 (1999): Luke, supra note 16, at 930; Pochlman, supra note 22, at 333, 339: Traci
Schlesinger, The Cunulative Effects of Racial Disparities in Criminal Processing, 7.
INST. JUST. & INVLSTUD. 261, 261 (2007); Teavis, supra note 16, at
163 Weber, supra noto 20, at 61445,
164 Roberts, supra note 159, at 172-73; Greenaway, supra note 159, at 25657
165. State Dot of Children's Servs. v. V.N., 279 SW.34 806, 823 (Tenn. CL. App. 2008).
188 WILLLAM & MARY JOURNALOF WOMENANDTHELAW [Vol. 18:161
between state expectations for incarcerated parents and what it is
likely these parents ean accomplish in the relatively short period of
time allotted under the federal standards." The mother in V.N. had
been incarcerated twenty times between 2002 and 2008."” Although
the opinion is unclear as to the nature of all of the mother's convic-
tions, it does indicate that the mother had been jailed at various
times for theft, driving on a suspended license, possession of drug
paraphernalia, and violating probation.'*” At the parental termina-
tion trial, a Department of Children’s Services representative testi-
fied that the mother failed to comply with the permanency plans which
required herto, inter alia, complete alcohol and drug treatment, main-
tain an aleohol and drug-free lifestyle, be able to provide financially
forherself and her child, have stable employment, and have safe and
independent housing."*” According to the opinion, the mother was in-
carcerated for the majority of the time, and, during the five months
she was not in prison, she failed to obtain a job or independent hous-
ing.™ The court further noted that the mother had some visits with
the child but the mother attended only some of them and failed to
attend a birthday party for the child for which she had promised to
bring a cake and presents.”
The mother's presentation of evidence suggested a more compli-
cated and frustrating picture. Her testimony suggests failures in the
system, particularly a lack of resources to support her family and toal-
low her to be a responsible caring parent."™ The mother testified that
she did not understand
the things she was supposed to do under the permanency plan
and she stated: ... I've never had to depend on myself o really,
T didn't even know what place to work. . . There were services
offered to me, but it wasn't really nothing to help me. They never
really showed me the way in doing anything. I mean, they would
explain stuff to me, but I've, I've [sic] never really had to depend
on myself before, so I really didn't know what to do.”'™
From the mother's perspective, there was a clear disconnect between
‘what social services expected in order for her to maintain her parental
rights and her understanding of how to carry out the permanency
plan. Although the perception of social services may have been that
166, Id. at 312-13.
167, Id. at 312
168, Id. at 311
169, Id. at 306
170. Id. at 310.
171, V.N.. 279 SW.ad at 310,
172, Id. ot 31213,
173, Id. at 312
2012] “THE GOOD MOTHER" 189
the failure to visit her child indicated a lack of interest in care-taking,
the mother's testimony says more about inadequate resources and as-
sistance than a lack of care.™ When asked about whether she cared
for the child, why DCS was unable to get in touch with her, and mis-
sing visitations, the mother testified that she did not have a driver’s
license, car, means of transportation, place to live, job or a phone.'™
She further indicated that she did not have a GED."™ When asked
why she failed toattend her chil s birthday party, the mother testified,
“Cause I didn't have nothing to give her, and I didn't want to, [
didn't, T was embarrassed. I didn't show up, ‘cause I didn't want to
hurt her no more ‘cause I didn't have nothing. I had no job. I had no
way of getting her anything.””
It is clear from the case that the mother's addiction, lack of
education, and joblessness reflects more than mere individual fail-
ings. The mother seems to have lacked basic understandings of how
to proceed to put her life back together and was without family re-
sources to call upon to assist her. ™ The case reveals a family in eri-
sis, a family in which at least three female members of the family were
in jail at the same time for addiction-related behaviors.”™ The case
reveals a family unable to provide the kind of support that would pre-
vent the State from intervening to care for the child.™ The mother
explained that her failure to more aggressively seek treatment for
her drug addiction was partly due to her reliance on her mother to
care for her child. " As a result, her mother's and later her sister's
incarceration created a childeare gap she was unable to fill and al-
lowed the state to step in and put her child in foster care.”™
The case also reflects the impact of inadequate education, pat-
terns of work in underground markets that can often occur in poor
communities, and the effect of intergenerational crime.'™ Although
the mother had neither a high school diploma nor formal employ-
ment, she had an arrangement with a friend, Mr. Landers, to provide
services for him since he was disabled.'** Apparently, the mother
had done general housekeeping for Mr. Landers in the past and he
174, Id at 31213,
175, Id.
176. Id. at 315,
177, V.N. 279 SW.ad at 313,
178, Id. at 31214,
179, Id. at 307.
180, Id. at 3075
181, Id. at 31314
182, Id. at 307
183 See Justin Brooks & Kimberly Bahna, ‘% a Family Affair’—The Incarceration of
the American Family: Confronting Legal and Social Issues, 28 U S.F.L REv. 271,250 (1994),
184, V.N., 270 SW.3d at 311-12.
190 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
testified that when she was released from jail, the mother could live
on the second floor of his five-bedroom house and could clean his
house, do laundry, wash dishes, and cook for him in exchange for a
wage. ™ The juvenile court noted this job arrangement but expressed
concern that there had "been no proof of what her actual pay was or
pay stubs or bank account records.”™ An informal arrangement to
provide services in exchange for room, board, and pay is not uncom-
mon in poor communities.™ The court, however, searching for more
familiar and conerete evidence of employment, found Mr. Landers's
representations insufficient proof of the mother’s efforts to secure a
job.'** The State’s expectations for mother as expressed by DSS and
the judge may reflect a disconnect between the standard being ap-
plied and what realistically can be achieved by these parents.
Perhaps the greatest divide in the opinion is the conclusion up-
holding the decision that terminating parental rights was in the child's
best interest.”” The result ignores less draconian possibilities urged by
the mother during the hearing. " During her testimony, the mother in-
dicated a strong desire to maintain a connection with her child, stating:
The only thing T ask of the Court whatsoever s that T can get visi-
tation with her. ... Tjust want to see her if 'm doing good. ... T
mean, I can ask for another chance but I'm sure I'm not going to
get [sic], but T want to do everything I can to see my kids because
Tlove my kids.**"
The court, reaching for an all or nothing solution, nonetheless con-
cluded that the mother abandoned her child and that termination of
parental rights would be in the child’s best interests.'* This case, like
many others, would probably have benefitted from efforts to achieve a
middle ground short of termination that might have allowed future con-
tact between the child and his biological family
185. Id. at 312
186. Id. at 314
187. See SUDHIR ALLADI VENKATESH, OFF THE BOOKS: THE UNDERGROUND ECONOMY
OF THE URBAN POO xii (2006) (reporting the use of a barter systom i poor communities
s common); WILLAMULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW.
URBAN Po0R 4175 (1996),
188, V.N. 279 SW.3d at 321
189, Id. at 323 (reaching this conclusion based on findings that the juvenile court did
not err in finding clear and convincing evidence to terminate mother’s parental rights
for abandonment and for failing to substantially comply with the permancney plan despite
the State's reasonablo efforts to assist the mother).
10. Id. at 323,
191, Id. at 313
192, Id. at 323
2012] “THE GOOD MOTHER" 191
1I1. DEVELOPING A CRITICAL RACE FEMINIST APPROACH TO
RESOLVING THE TENSION BETWEEN PRESERVING PARENTAL
RIGHTS AND ENSURING THE BEST INTERESTS OF THE CHILDREN
There is some disagreement about how best to balance the
myriad interests at stake when a mother who is incarcerated is un-
able to provide family care for her children. "’ Some focus on prior-
itizing the child’s need for permanence as a primary goal. The
Adoption and Safe Families Act is designed to advance this goal, and
a number of scholars support its implementation.** Some advocate
for greater intervention in families where there is the potential for
abuse and highlight the need to prioritize a child's right to safety
and permanence over a parent’s right to the care and custody of her
children."™ Others would prefer to blunt the harsh edge of laws and
policies that result in parental terminations and look for ways to
balance the needs of the children of incarcerated parents with the
rights of these parents. At the far end of this view, advocates focus
more on the need to support parental rights and a mother's right to
parent her children.'*
193, See Virginia Sawyer Radding, Infention . Implementation: Are Many Children,
Removed from Their Biological Familics, Being Protected or Deprived?, 6 U.C. DAVIS ]
JUV. L & POLY 29, 42 (2001) ({A] large percentage of families involved in the Child
Protection Systom are living in poverty.”). A number of scholars have addressed the.
issue of whether children have constitutional rights to maintain o sever parental ties
These scholars query whether children have a constitutional right to bond with their
parents. See Johnson, supra note 119, at 199400 (noting that case law reveals that some.
States are “parents'rightsjurisdictions” while thers are “child foeused jurisdictions” and
that[tJermination of parental rghts is always u sensitive and difficult issue”); ROSS ETAL
supra note 61, at 1 (stating that & child may have an interest in preserving a relation
ship with o noglectful parent); see also James G. Dwyer, The Child Protection Pretense:
States” Continued Consignment of Newborn Babies to Unfit Parents, 93 MINK. L. REY.
107, 44647, 476 (2008).
194, Proponents of the ASFA and short deadlines for terminating parental ights assert
that doing so is in a child's best interest. There is a vigorous debate about this issue in
legal scholarship. See Marsha Garrison, Why Terminate Parental Rights?, 35 STAN. L REY.
423, 461 (1989); Robert M. Gordon, Drifting Through Byzantium: The Promise and Failure
of the Adaption and Safe Families Act of 1997, 53 MINN. L. REV. 637, 658 (1999).
195, Adoption and Safe Families Act of 1997, Pub. L. No. 10589, 111 Stat. 2115 (1997
codified in scattered sections of 42 U.S.C. (1997)).
196. On a related point, Professor Dwyer also advoeates for anticipatory terminations
in families with a history of abuse. See Dwyer, supra note 193, at 47273
197. See Annotte Ruth Appell, Virtual Mothers and the Meaning of Parenthood, 34 U
MIcH_ JL. REFORM 683, 710, 758 (2001). Appell states that the “suggestion that the
parental rights doctrine or family privacy is anachronistic may not comport with the.
xpericnces of the thousands of familics who are deprived of the recognition and protec
tion the doctrine affords.” Id. at 758 see also Philip Genty, Some Reflections About Three
Decades of Working with Incarcerated Mothers, 29 WOMEN'S RIs. L. RE. 11, 14 (2007)
198. Appll, supra note 197, at 787-88.
192 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
While many mothers in parental termination proceedings, like
the mother in State of Tennessee Department of Children’s Services
v. V.N., profess a desire to parent their children at a parental termina-
tion hearing, critics would argue that their failure to maintain regular
communication with their children means that terminating parental
rights would serve their child's best interest.' The principal objec-
tions toa parental rights approach to thinking about parental termi-
nations are based in concern for the welfare of the child** The
assumptions are that parental terminations can serve a child’s best,
interest by severing a legal relationship with a parent who has ei-
ther directly orindirectly harmed the child, and that a continued legal
relationship between parent and child will further cause harm to the
child*” These hypotheses are related to the idea that incarcerated
women have failed in the past and will likely continue to fail to ade-
quately mother their children.
While incarcerated mothers may fall short of the ideal, and bar-
riers exist to parenting from prison, these obstacles need not necessar-
ily result in inadequate parenting. Despite the difficulties created by
the distance and restrictions of prison life, an approach that errs on
the side of parental terminations fails to account for the continued
mother-child bond that often persists despite the obstacles created
byincarceration.™” Although incarceration presents a number of ob-
stacles to parenting, it does not necessarily break the psychological
bond between the parent and the child** The separation due to incar-
ceration is trying for all parents but may be particularly difficult and
painful for mothers.* These women often report sharing a bond with
their children and, for many, their incarceration is the first major sep-
aration they've experienced.** Mothers in prison report feelings of
guilt, anxiety, and sadness, and are often distressed over their lack
199. See In re Omarian R., No. H11CPO00S614A, 2008 Conn. Super. Ct. LEXIS 1427,
at *30-32 (Conn. Super. CL June 2, 2008)
200. Appell supra note 197, at 732.
201, 1d. at 75859,
202, Baunach, supra note 46, at 155-56.
208, Id.at 155,
204, BERNSTEIN, supra note 16, at 71; DONALD BRAMAN, DOING TIME ON THE OUTSIDE:
INCARCERATION AND FAMILY LIFE IN URBAN AMERICA 95 (2004) (noting that “there is
nothing intrinsically different sbout these famsilies [with an incarcerated parent] that sets
them apart”); Block & Potthast, supra note 41, at 563; Erika London Bocknck ot al
Ambiguous Loss and Postiraumatic Stress in School-Age Children of Prisoners, 18 J.
(CHILD & FAM. STUD. 823, 330 (2009); Loper, supra note 43, at 81
205. See Lee, supra note 44, at 239 (addressing the “fragmenting effect” of maternal
incarceration on families): se also Block & Potthast, supra note 41, a 361; Luke, supra
note 16, at 930.
206, Baunach, supra note 46, at 157
2012] “THE GOOD MOTHER" 193
of parenting skills and concern over their children’s well-being.”
Incarcerated mothers assert that being separated from children is a
source of significant stress.* Dr. Baunach finds that the psycholog-
ical repercussions may be analogous to those resulting from other
forms of loss, such as death or divorce. The grief response emitted by
inmate-mothers may be characterized by emptiness, helplessness,
anger and bitterness, guilt, and fear of loss or rejection.”*”
Many incarcerated women try to maintain contact and desper-
ately want to be “good mother(s]” despite the barriers to maintaining
contact.”* “Inmate mothers .. . possess positive parenting attitudes
(love, caring, guidance) equivalent to those of mothers who are not.
incarcerated,” and their self-esteem is often tied up with their role
as mother.** Others conclude that “children are important to incar-
cerated mothers: a majority of these mothers apparently want to de-
velop a sense of responsibility as parents,” and “one of the greatest
impacts of the separation is to heighten this interest in children.”
Many imprisoned mothers “attempt to maintain some semblance
of the mother role” while in prison.”'* Moreover, they report that they
“plan to reunite with [their] children following release from prison.”
seeing their “separation as only temporary.”** As a result, the most,
damaging aspect of parental incarceration may be the threat of ter-
mination of parental rights.**
The ASFA and state termination standards fail to adequately
account for the mother-child honds and the barriers and stereotypes
incarcerated mothers face. " The ASFA should be amended to prohib-
it the application of a statutory time-line to termination proceedings
Short of doing so, however, parental incarceration should be an ex-
ception to the application of the ASFA time-line, except perhaps for
cases involving violence. In addition, courts should be prohibited from
considering incarceration as a factor in determining parental termi-
nation cases. Under this approach, timetables and standards of re-
view would be adjusted to make it more possible for parents to retain
207. Id. at 157-58; Block & Potthast, supra note 41, at 563 (cting L. LeFlore & MA.
Halston, Perceived Importance of Parenting Behaviors as Reported by Inmate Mothers: An
Esploratory Studs, 14 J. OFFENDER COUNSELING SERVICES & REHARILITATION 5 (1989))
208. Loper, supra note 15, at 84.
209, Baunach, supra note 16, at 157-58.
210 1d.at 15:
211, Block & Potthast, supra note 41, a
212 1d.at 563,
213, Baunach, supra note 46, at 165
214, Id_ (ctation omitted).
215, 1d
6. Id.at 157.
7. See Bonites, supra note 16, at 196,
194 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
their parental rights even when the family is adversely affected
by incarceration.”™*
Some scholars and activists, including Phillip Genty, have been
critical of the impact of prison policies and the ASFA on incarcerated
parents and have eloquently argued for caution in weighing incar-
ceration as a factor in determining parental fitness, stating that there
is aneed to press further and remove incarceration which is unrelated
to.a parent’s role as parent from any consideration in a termination
proceeding.** Under this view, courts would be prohibited from dra-
ing any negative inferences from parental incarceration in determin-
ing parental termination, regardless of the length of incarceration and,
as proposed by Richard Palmer three decades ago, incarceration would
not be considered abandonment.” Instead, the state would be re-
quired to show proof of direct harm or an attempt to harm the child,
sibling, other parent, or caretaker.”' Courts would adopt a “nexus”
218. For examplo, Professor Appell suggosts that the current standard of reviow in
parental tormination cases is too high and instead proposes a minimal care standard
urging courts 1o focus on whether a parent could provide minimal caro and mako de-
sions for the child as measure of fitness. Appell, supra note 150, at 610 (discussing
minimally adequate care standard).
219. Genty, supra note 197, at 12 (noting the ASFA makes termination of parental
rights more likely for incarcorated parents), Philip M. Genty, The Inflexibility of the
Adoption and Safe Families Act and its Unintended Impaci Upon the Children of
Incarcerated Parents and their Familics, CHILD WELFARE360° 10 (2008) (stating that the
ASFA make it diffieult for incarcerated parents to rotain their parental rights because
the longth and condition of the separation from their children is out of their control);
Richard D. Palmer, Comment, The Prisoner-Mother and Her Child, 1 CAP. U. L. REV.
127, 129 (1972).
230 Palmr, supra note 219, at 187
221, The court’s consideration of harm to or an attempt to harm a child's siblings,
other parent or caretaker is consistent with the scope of protections provided in many
States in domestic violence and abuse cases. In fact, in assessing the relovance of o
parent’s incarceration or conviction of @ crime in termination proccedings, a number of
States focus on the nature of the acts committed and the extent to which those acts
clearly demonstrate actual or potential harm to the child or the child's parent and pa-
rental unfitnoss. See, ¢.¢., ARIZ. REV. STAT. ANN. § 8533 (2010) (stating a paront must be
convicted of a felony that is ‘o such & nature as to prove the unfitness of that parent to
have future custody and control of the child"); CAL WELF. & INST. CODE §§ 3615, 366.26
(West 2010) (stating « parent must be “convicted of u felony indicating parental
unfitness"); GA. CODE ANN. § 15-11-94 (2010) (stating that incarceration has “a
demonstrablo nogative effect on the quality of the parent-child relationship"): seealso D.C.
(CODESS 16-2953, 16-2054 (2010); IND. CODE § 81-34-21.5.6 2010): IoWACODE §§ 202.102,
232111, 202116 (2010); M2, REV. STAT. it 22, § 4055; M. CODE. ANN., FAM. LAV § 5.
525.1 (LixisNexis 2010 MIsS. CODEANN. §§ 43.21-603, 93-15-103 (2011): Mo. REV. STAT.
§ 211,447 (2010); Ne. REv. STA. § 43-22 (2010); N&v. REv. STaT. §§ 125105, 128.106,
1328393 (LexisNoxis 2000): N.H. REV. STAT. ANN. §8 169.C:24-4, 170.C:5 (2010) in.
carcoration and abuse or neglect of a child: N.J. STAT. AN, §§ 30:4C-11.2, 30:4C-15 (West
2010);N.C. GEN.STAT. § TB-1111 (2010): 23 PA CONS. STAT.§ 3511 (2010). 5.C. CODEANN.
§ 63.7.2570 (2009); VE. STAT. ANN. tit. 15A, § 3-504 (2010); VA. CODE ANN. § 16.1-285
(2010); WAsH. REV. CODE §§ 13.31.182, 13.34.150 (LoxisNexis 2010); W. VA. CODES 49.6
2012] “THE GOOD MOTHER" 195
test approach similar to that used in custody matters and require that
any conduct, including conduct relating to the fact of incarceration,
have a demonstrably direct negative impact on the child before being
considered in a termination hearing.* This approach would raise
the bar for parental termination, shift the burden from the incarcer-
ated parent, and fix the presumption in favor of preserving parent-
child ties.
Inorder to further protect incarcerated mothers, the ASFA and
parental termination statutes that consider length of separation be-
tween parent and child as a factor should be limited to voluntary
separations and should be prohibited from characterizing imprison-
ment as a voluntary separation.” Some jurisdictions have begun
efforts to adjust termination standards and proceedings to be more
realistic about the needs of incarcerated families.* One approach,
recently adopted by New York, has been to expand the period of time
during which an incarcerated mother may meet the permanency plan
goals set for her by the state’s child welfare agency.” The recently
5 (2010 Wis. STAT. § 48.415 (LexisNexis 2010); see also Michelle Oberman, Judging
Vanessa: Norm Setting and Deviance in the Law of Motherhood, 15 W & MARYJ. WOMEN
&L 337, 337, 359 (2009) exploring the way the law distinguishes “good” mothers from
bad” mothers).
22 Mark Sirasser, Fit to Be Tied: O Custody, Discretion, and Sesual Orientation,
46A0 UL REV. 841, 861-62 (1997)
223, A number of states allow courts to consider incarceration or the length of incar.
coration as a factor without necossarily requiring proof o risk of harm to the child. See,
., ALA CODES 12-16-319(4) (LoxisNexis 2010) (lsting “convietionof and imprisonment
for & felony” among factors that courts can consider in making parental termination de-
cisions): AR CODE AXX. § 9-27-341 (2010) (terminating parental rights if it is in the
child's best nterest and “parent s sentenced in a criminal proceeding for a period of time
that would contitute a substantial period of the juvenile’s ie"): CoL0. REV. STAT. § 19-3-
B04(1))(3) (2010) isting “long term confinement ofthe parent” us a bsis or finding a par-
ont unft) DEL CODEANN. tit. 13, § 1103(a)(5)(a)(3) (2010) (terminating parental rights if
parent failed 0 plan for child’s necds and “respondent s incapable of ischarging parental
responsibilitios duo to extended or ropeated incarceration’) 750 111 COMP. STAT. ANN. 50/1
(West 2011) (isting certain actsthat create a rebuttable presumption that parent is unfit,
including convictions for cortain crimes); see also ALASKA STAT. §§ 47.10.011, 47.10.080,
47.10.,086, 47.10.088 (2010); FLA_STAT. ANN. § 39,806 (LexisNexis 2010): IpAHO CoDE.
ANN. § 16.2005 (2010): 705 ILL. COMP. STAT. ANN. 405/1.2 (LexisNesis 2010); KAN. STAT.
ANN. §§ 35-2269, 38.2271 (2010); K¥. REV. STAT. ANN. §§ 600.020, 610.127 (West 2010y
L. CHILD CODE ANN. arts. 672.1, 1015 (2010); MICH. CONP. LAWS SERV. § 712A19b
(LioxisNexis 2011); MONT. CODE AN, §§ 41-3-423, 41-3-609 (2010): N H. REV. STAT ANN.
§169-C:24-a, 170-C:5 (2010); N.D. CENT. CODE §§ 27-20-02, 27-20-14 (2010); OHIO REY.
CODE AN § 2151 414 (Wost 2010); OKLA STAT. tit. 10A,'§ 7006-1.1 (2010); OK. REV.
STAT. § 4198502 (2009); PR LAWS ANN. ft. 31, §§ 6342, 634b (2010): R1 GEN LawS
§ 1577 (2010); S.D. CODIFIED LAWS §§ 226-8A-26.1, 26-84.27 (2010): TENN. CODE ANN.
§36-1-113 2010); TEX. FAM. CODEANN. §§ 161,001, 161.002(5), 161,007 (West 2010); UTak
CODE ANN. § T8A-6-508 (West 2010); Wy0. STAT. ANN. § 14-2-309 (2010).
224 Dorothy E. Roberts, Criminal Justiceand Black Families: The Collateral Damage
of Over-Enforcement, 34.U.C. DAVIS L. REV. 1005, 1019 (2001).
225, N.Y. Soc. SERY. LaW § 358-a (Consol. 2011,
196 WILLLAM & MARY JOURNAL OF WOMEN ANDTHELAW [Vol. 18:161
passed bill recognizes the additional difficulties incarcerated parents
face in trying to maintain contact with their children from prison.*
The legislation is a step in the right direction in acknowledging the
barriers incarcerated parents face in attempting to maintain contact
with their children. Efforts to help incarcerated mothers address the
underlying behaviors (such as substance abuse which precipitated the
parent’s imprisonment) and the range of emotional and psychological
issues (such as histories of abuse and mental illness) with which they
areoften dealing should continue, Unless legislatures simultaneously
address issuesof poverty, unemployment, and inadequate education-
al systems and provide effective childcare networks for these women
whose circumstances may take years to address, these efforts are
likely to have a widespread impact on the rising rates of parental
terminations of incarcerated parents.
Another important area of inquiry would be the disproportion-
ate impact of current laws and policies on women of color and poor
women.*’ Professor Twila Perry calls for gathering the stories of
women of color whose parental rights have been terminated.*
Professor Patricia Williams makes the point that redistributing re-
sources so that blacks can afford to raise their own children may be
preferable to placing black children in white homes because they “do
better.”* It may be possible to develop a community-based foster-
ing system that allows children whose parents are incarcerated to
stay in their communities, receive adequate parenting, and main-
tain their ties with their parents. In fact, the notion of “community
mothering” has long been a part of African-American traditions and
communities and could be the basis of reconceiving the foster care
system.* As Professor Patricia Hill Collins has noted, “[ijn many
African-American communities . . . women-centered networks of
community-based child care have extended beyond the boundaries
226, The Adoption and Safe Families Act Expanded Discrotion Bill gives agoncies moro
fexibility to maintain children's ties to an incarcerated parent, with the hope of reu
fication afer reloase. See Policy Agenda 2011: Protecting Bonds Between Mothers and
Children, CORRECTIONALASSNN.Y. httpwwi correctionalassociation.org/policy_agenda
Iprotecting mothers_and_children htm (last visited Feb. 13, 2012).
227. Professor Roberts proposes an anti-subordination approach that focuses on the
concrete effects of government policy on the substantive conditions o the disadvantaged
Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Colo,
‘Equality, and the Right of Privacy, 104 HAW. L. REY. 1419, 1471, 1477 (1991).
228 Twila L. Perry, Transracial and International Adoption: Mothers, Hierarchy, Rac,
‘and Feminist Legal Theory. 10 YALE J L. & FEMINISM 155, 156, 15850 (1998).
226, PatriciaJ. Williams, Spare Parts, Family Values, Old Children, Cheap, in CRITICAL
51, 153 (Adrien Katherine Wing ed., 1097).
230. Arlono E. Edwards, Community Mothering: The Relationship Betuween Mothering
and the Community Work of Black Women, 2 J. MOTHERHOOD INITIATIVE FOR RES. &
(COMMUNITY INVOLVEMENT 57, 88 (2000)
2012] “THE GOOD MOTHER" 197
of biologically related individuals to include ‘fictive kin.”*" These
caregivers were neither necessarily related to the children who found
themselves in their care nor did they displace the natural parent.
This “other-mother” tradition, as noted by Professor Collins,*” is
based in the theory that “hecause all children must be fed, clothed,
and educated, if their biological parents could not discharge these
obligations, then some other member of the community should accept
that responsibility.”* Under this view, community mothers could re-
ceive priority as foster care mothers and be paid a premium for caring
for their children in need and keeping them in their own communi-
ties.” This allows a continuity of care in a familiar community for
the child but can also serve to empower the foster mother and the com-
munity.** Collins notes that mothering and other-mothering has a
history of leading to community activism.** Being a mother is often
a source of power and can be a “symbol of hope.”*" She asserts that
by rejecting separateness and individual interests, community moth-
ering supports connectedness with others and common interests.”*
This has the result of fostering a greater sense of community and
can be a source of achieving status in the community.* On the other
hand, terminating parental rights not only removes children from
their communities but disempowers the mother whose only source
of potential power or status may be as a mother, and disempowers
communities by removing their youth.
A systematic process for educating judges, caseworkers, and
members of the bar about the issues facing incarcerated mothers
might similarly help dull the force of the ASFA and state parental
termination provisions. The need for judges to have a more realistic
view of the nature of the relationship between parent and child, and
the limitations on maintaining contact presented by incarceration,
begs for rethinking the relationship between child welfare and penal
systems. Judicial education could include sessions on the impact of
COLLINS, supra note 149, at 179 citation omitted)
I
Id. citing MULLINGS, supra note 35),
See id. at 180
Td. at 192.
I
COLLINS, supra note 149, at 198; Roborts, Motherhood and Crime, supra note 146,
lack women historically have experienced motherhood us an empowering de-
nial of the dominant society’s denigration of their humanity.’).
238, COLLINS, supra note 149, at 192.
239, See Perry, supra note 228, at 117. As partof a discussion of transracial adoption
the author notes that “[flor Black women, part of the symbolic cultural meaning of
mothering is tied to race.” . see also Roberts, Motherhood and Crime, supra note 1146
at 182 (‘Bearing and nurturing Black children cnsure the lfe of the Black community.”).
198 WILLLAM & MARY JOURNALOF WOMEN ANDTHELAW [Vol. 18:161
domestic violence, childhood abuse, mental health issues, and grow-
ing up in poor communities on women and on the abilities of moth-
exs to parent effectively. Women from impoverished communities
may have an even more difficult and stressful role in mothering their
children than mothers with ample financial means and resources.*”
Many of these women come from communities which present greater
challenges to mothering and caring for their children than many
other mothers. For example, one study of Central Harlem notes that
“[women [in Harlem] spend an extraordinary amount of time es-
corting children, limiting their movement, and trying . . . to keep
them away from the violence. ...”*" Ensuring that judges and case-
workers have a greater understanding of the struggles families face
before, during, and after incarceration might lead to results that
more often than not lead to the preservation of families.
One of the common criticisms of parental incarceration is that
the criminal justice and child welfare systems fail to work together.**
From the point of arrest, through processing the accused and impris-
onment, the criminal justice, sentencing, prison, and child welfare
systems should coordinate their efforts to ensure safe care-taking and
planning for children.*** Most police departments have vet to develop.
concrete policies for responding to and dealing with situations in
which children are present at the point of arrest.** States should
mandate minimum standards for arrest procedures in which children
are involved which would, at a minimum, require the child welfare
agency to be informed of the presence of children and to consult with
the arrested parent immediately after the arrest to ensure the safe
placement of the child with a relative or close friend if at all possi-
ble. In the absence of a family or friend with whom the child could
be placed, the child welfare agency should secure a safe foster care
placement for the children in or near the child's community and with
an expectation that siblings would not be separated. Moreover, stan-
dards with regard to returning the children to their families as soon
as possible, assistance with maintaining contact between the parent,
and child, and minimum levels of communication between the social
worker and parent should be required. The state should impose stan-
dards on child welfare agencies for the facilitation of communication
between parent and child. Balancing the responsibility between the
240, COLLINS, supra note 149, at 197.
241, MULLINGS, supra note
242
243,
244, BERNSTEIN, supra note 16, at 259,
4413637 Pochlmann, supra note 22, at 339,
2012] “THE GOOD MOTHER" 199
parent and the child welfare agency would be more effective in ensur-
ing communication between parent and child and is a more realistic
approach given the significant barriers parents in prison face in com-
municating with their children.
Family courts hearing termination proceedings should adopt a
more holistic integrated approach to resolving termination maters.
Termination proceedings should not proceed without the presence
of the parent whose rights are in issue and those parents should be
guaranteed a right to counsel.* Perhaps a lesson can be learned from
the integrated approach taken in domestic violence cases in rethink-
ing the interface between family courts and imprisoned parents faced
with parental terminations.** In some jurisdictions, domestic violence
cases may be assigned to a single judge under the “one family one
judge” philosophy.*” The integrated approach to domestic violence
‘was adopted in recognition of the myriad social and legal issues fac-
ing families experiencing intimate partner violence.** Judges are able
tosee, understand, and help resolve the criminal, family, and matri-
monial matters.**’ These judges bring together the lawyers, social
workers, law guardians, and child welfare personnel who are work-
ing with these families in order to provide a coordinated response to
a problem that affects all members of the family.”
An integrated family court could be authorized to require the ap-
pearance of the parent, child welfare, a law guardian, the family, and
a trained social worker from the penal facility before proceeding with
a termination matter. Judges would have a more realistic view of the
relationship between parent and child, as well as the obstacles to com-
municating faced by incarcerated parents. Adopting an integrated ap-
proach to sentencing and parental terminations, at least in some subset,
of cases, would facilitate the coordination of istinct agencies. This ap-
proach involves “taking the whole family to court” in recognition of
245. Konnedy, supra note 26, at 121; seealso In re Eileen R, No. 508828, 2010 N.Y. App.
Div. LEXIS 9516, at *4 (N.Y. App. Div. De. 23, 2010) (reversing termination of parental
rights in light ofthe lower cour’s failure to consider the incarcerated parents’ request to
testify by telophone).
246, Intograted domestic violence courts are anly ono example of a generation of special-
ized courts which attempt to deal more holstically with logal issues by addrossing not only.
the range of logal problems presented in a case but often the social and peychological as
well. Key Principles, N.Y. STATE UNIFIED C1. $v5., hitpifwwsenycousts govicourtslproblen
_solving/IDV/key._principles.shtml (last vsited Feb. 13, 2012).
247 Overview Family Court, COMMONWEALTHOF Y. httpicousts ky govicireuiteourt
Hamilycourt/ (last visited Feb. 13, 2012).
248, 1d
249, 1d
250. Key Principles, supra note 246
200 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:161
the fact that when a parent is sentenced, so too is the entire family.”"
Mothers who are incarcerated may be faced with trying to find hous-
ing and care for their children, may have drug and aleohol problems,
ormay have a host of other social and economic problems that a judge
can weigh in considering sentencing, diversion, and treatment pro-
grams for the incarcerated mother.
CONCLUSION|
Incarcerated mothers remain a vilified group, and their children
and families are largely invisible. Reform is needed so as to stem the
tide of parental terminations due to incarceration and to support
communities that are losing their youth to foster care and inter-
generational crime. Greater assistance is needed for families facing
cconomic stress and incarceration in order to limit family disruption.
A more realistic view of what mothering entails in the face of poverty,
addiction, and incarceration would better serve mothers and children,
like Caliphah and Omarian.
251, Taking seriously the concern about the impact of incarceration on families and
children would also mean rethinking much of the criminal justico system, including man-
datory minimums, and providing greater latitudo in sontencing non-violont offendors.
‘While addressing these issues goes beyond the scope of this article, one approach could
include permitting sentencing judgos t receive“family impact statement[s]” and roports.
from child welfare workers about the family. BERNSTEIN, supra note 16, at 261
252, 1.