Dealing With the Problem of Parental Incarceration

Matthew T. Mangino
The Pennsylvania Law Weekly
November 12, 2013

Children with incarcerated parents are a growing problem in Pennsylvania and across the country.

The number of inmates who are parents has increased by 79 percent since 1991. The population of parents is following a trend similar to that of all incarcerated individuals. There are about 2.3 million people in jail or prison in this country. In 1980 there were about 502,000.

According to sociologist Bruce Western, it is estimated that about 2.7 million children across the country share the anxiety and uneasiness of having a parent locked up. Western estimates that one of every 28 American children—3.6 percent—has an incarcerated parent. Just 25 years ago, the number was one of every 125.

Black and Hispanic children are more likely than white children to have a parent in prison. In the United States, 6.7 percent of black children, 2.4 percent of Hispanic children and 0.9 percent of white children have a parent in prison, reported the Bureau of Justice Statistics.

The percentage of women in prison is still significantly lower than men; however, the rate of growth of female inmates is much higher than men. Many of these women are mothers and had been their children's primary caregiver prior to being incarcerated.

In "The Adoptions and Safe Families Act: Barrier to Reunification Between Children and Incarcerated Mothers," Kristen S. Wallace made some startling findings when it came to incarcerated mothers. Seventy-seven percent of incarcerated mothers in state prison lived with their children prior to incarceration and 52 percent of them were single mothers.

Although child service agencies will say that reunification is the goal for the child and incarcerated parent, 62 percent of parents in state prisons and 84 percent of parents in federal prisons are imprisoned at least 100 miles away from their homes. The average sentence of an incarcerated parent is 80 to 100 months. Wallace's findings demonstrate the sad and likely failure of reunification plans.

The problem is so pervasive that a cultural icon has taken on the issue as a significant social problem facing America's youth. This summer, "Sesame Street" added a new character to its lineup. The show introduced Alex, a child whose father is in prison. "Sesame Street" has taken on the issue of children of incarcerated parents as part of the online "Little Children, Big Challenges" series.

The pain portrayed by Alex is palpable. Millions of kids like Alex are hurt by the absence of a parent. Those same children are horrified by the prospect that their relationship with their incarcerated parent can be terminated legally and unequivocally.

In Pennsylvania, the state House of Representatives passed a resolution in 2009 that required the Joint State Government Commission to complete a study on the effects of parental incarceration on children. The final report was issued in December 2011.

Parental incarceration can create a wide range of problems for children. Those problems include economic distress, anger, depression, shame and guilt. Not surprisingly, children of incarcerated parents often suffer in the classroom as well.

The most profound effect, according to the report, may be the loss of a child's sense of stability and safety. "The parent is usually a staple of those for the child, so when that pillar of stability is removed, the child may feel his or her whole world has fallen apart; the trauma of abandonment and insecurity may last for a very long time."

One area the commission focused on was the federal Adoption and Safe Families Act. The seemingly well-intended ASFA provides specific, and very rigid, guidelines to reduce the number of children in foster care and increase the number of children placed in permanent homes. The federal law, enacted in 1997, provides that courts are required to terminate parental rights after a child has been in foster care for 15 of the previous 22 months. This provision can have a devastating impact on children of incarcerated parents.

The commission recommended that Pennsylvania adopt legislation to ease the burden of the 15-month timeline in cases when it is in the best interest of the child, and also to emphasize that incarceration alone is not a basis to terminate parental rights.

As a result, state Sen. Stewart Greenleaf introduced Senate Bill 112. The bill seeks to incorporate the findings of the commission into existing law or new legislative provisions.

For instance, according to Greenleaf's legislative memorandum, the Domestic Relations Code, Section 23 Pa.C.S. §2511, lists the grounds for involuntary termination of parental rights. The advisory committee recommended, and SB 112 includes, a sentence that provides, "The rights of a parent shall not be terminated solely on the basis of parental incarceration."

The Judicial Code, Section 42 Pa.C.S. §6351, provides what a judge must determine at a permanency hearing. SB 112 includes language giving the court the authority, when determining whether the rights of an incarcerated parent should be terminated, to consider if the parent is making an effort to comply with the family service plan requirements and otherwise maintain a meaningful role in the child's life during the time of incarceration.

The legislation was referred to the Senate Judiciary Committee on Jan. 9 with no further action.
SB 112 is a departure from the current case law in Pennsylvania. Under existing Pennsylvania law, incarceration has never been accepted as the sole basis to terminate parental rights. However, in In re Adoption of S.P., 476 WAL 2011, a termination was affirmed in spite of the father's wishes to maintain a relationship with the child and his pending parole.

Some states have taken it a step further. In 2010, New York passed the ASFA Expanded Discretion Bill. The new law provides discretion to child service agencies to delay termination proceedings if parental incarceration is a factor. This spring, Washington state passed a similar law providing the courts with discretion if a child's continued stay in foster care is a result of a parent's incarceration.

Pennsylvania and other states across the country need to take action. The consequences of even a relatively short sentence should not lead to the permanent severance of family bonds. According to the Children of Incarcerated Parents Bill of Rights, "When this happens, children are forced to forfeit the most fundamental right of all—the right to remain part of their families."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is a former district attorney for Lawrence County and a former member of the Pennsylvania Board of Probation and Parole. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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