The Adoption and Safe Families Act of 1997: Its Impact on Prisoner Mothers and their Children
by Gail T. Smith

 children-of-prisoners  court-advocacy  motherhood  public-policy

Suzanne Meiners contributed research for this article.

The dramatic growth in the women prisoner population has a critical impact on our collective future because many of these women are mothers and because their incarceration affects the lives of their children. As more mothers are locked up, more children join the burgeoning population of foster children in a system that is widely recognized to be a disaster. Whether these children will be successfully reunited with their mothers, be adopted, or will grow up in the system has always depended on a number of factors, including the length of the mother’s sentence, the nature of her offense, her participation and progress in rehabilitative programming, the age of the child, the quality and strength of her relationship with the child, and the attitudes of the case worker and foster parent toward the mother. Addiction specialists, corrections officials and researchers site the hope of reuniting her family as a primary motive for women to change their lives for the better. The fear-or reality-of permanent loss of her children can send a mother into a downward spiral of relapse and recidivism.

The dilemma for imprisoned women who have minor children recently got worse: the Adoption and Safe Families Act of 1997 (PL 105-89), known as ASFA, has made it far more likely that mothers of children in foster care will lose their children permanently. While ASFA is intended to provide permanency for children in foster care, its likely impact for many children, in particular older children who are less adoptable, will be to make them legal orphans who have neither ties to their birth parents nor permanent homes. Children who grow up in foster care with no relationship with their mothers, are at risk of becoming part of the prison population themselves, furthering the growth of the prison-industrial complex. If the law provided resources and focused on assisting mothers with addictions instead of so quickly giving up on them, it could help families in a meaningful and lasting way. ASFA fails families on that score. This article explores ASFA and its implementation in the states, and suggests ways to preserve families in spite of it.

ASFA makes four important changes to foster care policy at the federal level. First, it removes the requirement for states to provide reasonable efforts to reunite foster children with their parents under specified circumstances, and it emphasizes that the child’s health and safety shall be the paramount concern when providing reasonable efforts. Second, it hastens the process of permanency planning and court proceedings, and mandates reasonable efforts to find a permanent placement for the child in cases when reasonable efforts to reunite the family are not required. Third, it imposes a mandate for states to move to terminate parental rights in certain circumstances, with a shorter timeline for parents to complete services and regain custody or face termination. If a child is in foster care for 15 of the past 22 months, the state must move to terminate the parent’s rights except under certain circumstances. Fourth, it provides financial incentives for states to increase the number of adoptions completed annually. The Act also provides for criminal records checks for prospective foster and adoptive parents, calls for documentation of agency efforts to locate an adoptive or other permanent homes, and promotes resources for cross-jurisdictional adoptions and permanent placements of children across state and county lines.

The ideology of family reunification, which some commentators believe has been applied too broadly, never has been applied with enthusiasm to prisoner mothers. This is in part due to the distance foster care caseworkers must travel to provide visits for children with mothers in prison, and caseworkers’ unfamiliarity with prison regulations, resources, programming and staff. It is also due in large part to a widespread bias against reuniting children with a mother who has been to prison. The gap between the policy of family reunification and the practice in reality is stark. Despite the generous efforts of non-profit agencies and volunteers, the dearth of resources to preserve the families of imprisoned mothers is a national shame, particularly since most were convicted of petty offenses.

Under ASFA, reasonable efforts to preserve and reunify families are not required when a parent has:

• Subjected the child to aggravated circumstances such as abandonment, torture, or abuse
• Committed, or had any criminal accountability in, the murder or manslaughter of a child or the child’s other parent, or
• Committed felony assault resulting in serious bodily injury to the child or the other parent.

While this would seem a reasonable provision to insure child safety, its application to battered mothers who have acted to protect themselves and their children against abuse by the other parent and who then are held criminally culpable will likely result in severe injustices against mothers and children in the aftermath of domestic violence.

Further, ASFA removes the requirement of reasonable efforts to reunify families if the parent’s rights to a sibling have been terminated involuntarily. Mothers who have lost children permanently for reasons not related to any mistreatment of the children, including the mere length of time in foster care, face the risk of losing any children they ever have in the future. For any mother who has struggled with addiction and relapse for several years before she was able to turn her life around, this poses the ongoing risk of state intrusion and removal of her children even when she is stable in recovery. The perceived unreasonableness of this policy can lead mothers to desperate acts such as forgoing prenatal care or trying to give birth out-of-state.

Even more troubling, states are required by ASFA to file or join a petition to terminate the parent’s rights not only in the above circumstances but whenever a child has been in foster care for 15 of the most recent 22 months. There are three exceptions to this termination requirement:

• The State has placed the child in the care of a relative;
• The State has documented a compelling reason why a termination petition would not be in the child’s best interests; or
• The State has not provided the family with services necessary for the child’s return, in cases when such services are required.

This push toward termination of parental rights based strictly on a 15-month timeline will likely have the worst impact on the largest number of families of imprisoned mothers. For a mother serving even a relatively short sentence, meeting the new time frame imposed by ASFA will present an extraordinary hurdle at best, and in many cases will be impossible. When one considers the number of months, or even years, spent in pre-trial detention in large metropolitan criminal court systems, it is quite possible that a mother found not guilty of a criminal charge could lose her children permanently while awaiting trial on a case. To avoid losing her child permanently, within 15 months of the child’s placement in foster care or adjudication as a ward of the court, the mother must establish a household and a source of legal income to support the child, recover from any addiction she may have, and complete all other required services, which usually include parenting classes, counseling and a psychological evaluation. Put this scenario in context of the hardships faced by most women as they re-enter the community after prison, including the severe lack of services or resources to aid their transition from prisoner to self-supporting community member, and it is clear that they face nearly insurmountable odds in their hope of reuniting with their children in foster care. Since children suffer in foster care, and there is no surplus of adoptive homes, this provision of ASFA arguably is as unjust to many children as it is to their mothers since it will needlessly deprive them of their mothers.

Forty-eight states have passed legislation in response to ASFA; only Hawaii and Vermont have not amended their state laws. The mandate to file termination of parental rights petitions when children have been in placement for 15 of 22 months was added to 35 state statutes, and 5 other states added provisions that may make the time-frame for termination even tighter than that. Illinois added provisions echoing ASFA and three additional grounds for termination of parental rights that specifically target imprisoned parents:

• There is a rebuttable presumption that a parent is depraved (and therefore unfit) if the parent has been convicted of at least 3 felonies under any state, federal or territorial law, and at least one conviction took place within 5 years of the filing of the termination petition;
• The child is in custody, the parent is incarcerated at the time of the filing of the petition, prior to incarceration the parent had little or no contact with the child or provided little or no support, and incarceration will prevent the parent from discharging parental responsibilities for more than 2 years after the petition is filed;
• The child is in custody, the parent is incarcerated at the time of filing, the parent has been repeatedly incarcerated as a result of criminal convictions, and the incarceration has prevented the parent from discharging parental responsibilities for the child.

These grounds look both at past conduct and prospective availability of the parent. A mother who is working hard in rehabilitative programs and turning her life around is out of luck if her past fits within this profile. So is a mother who is serving a first-time sentence of more than two years and who, in her addiction for example, was out of touch with her children before her arrest. Given the turnover not only of foster care workers but even foster care agencies overseeing services, it is not easy to keep in touch. The state, however, puts the burden squarely on the mother to do so.

The recent growth in the foster care system, combined with the proliferation of foster care agencies, can be connected with the anticipated continued growth of the prison-industrial complex. The path from foster care into delinquency and the juvenile justice system, and from juvenile detention into prison is all too familiar to service providers and advocates working with prisoners. Children in foster care are subjected to multiple placements which forever affect their relationships, sense of self-worth and ability to function as adults. This author has noted a high proportion of clients who were foster children before they were prisoners, many of whom had their first experiences of alcohol, drugs, and sexual abuse in their foster homes. Approximately one in four foster children are abused in foster care. The loss of family connections also means loss of potential family resources for young adults when hard times hit, and thus foster care in childhood has been connected with homelessness in adulthood. The General Accounting Office in its 1995 Foster Care Overview noted a study finding that 2 to 4 years after leaving foster care, 40% of youths had been on public assistance, incarcerated or posed other costs to the community. This is no surprise, and it should make us question the motives of those policy-makers who favor severance of family ties over family preservation.

The stated goal of ASFA was to increase the annual number of adoptions of children in foster care to 27,000 by the year 2002. However, in 1996 there were over 30,000 more children whose parents’ rights were terminated than there were children adopted. Neither ASFA nor the majority of state statutes require adoptive parents to be identified before a child is permanently cut off from the parents. State foster care budgets depend on federal reimbursement for children in foster care, and since ASFA’s financial incentives for increasing adoptions over the annual mean is small in relation to these payments, it is all the more likely that the expansion of termination of parental rights will result in an ever-larger population of children who will grow up in foster care and never have an opportunity to live with their mothers again, nor to be adopted.

The media storm surrounding several horrifying cases of child abuse in recent years led to increased removal of children whose parents were suspected to be caring for them inadequately, flooding the foster care system and therefore rendering it even less able to serve children and families. The number of children in foster care has almost doubled in the past ten years, and in many cases, their placement is not due to child abuse. According to researchers at the University of Illinois at Chicago, only 15% of children in the Illinois foster care system were abused physically, sexually or emotionally. The other 85% were in foster care due to neglect or inadequate supervision. Child welfare advocates widely recognize that the parent-child separation in itself is severely damaging to children’s well-being, yet services to prevent the need for foster care or to help parents remedy problems early on have never been sufficiently available, of uniformly good quality, nor adequately funded. In fact, the availability of substance abuse treatment has actually declined, and other resources designed to keep children at home are almost non-existent. If preventive services were widely available and were provided in a manner that respects mothers and build on their family strengths, many women in prison today would have addressed their problems before they were ever arrested.

For children who have lived with their mothers, know and remember them, and have bonded with them, the 15-of-22-month provision is likely to be devastating. Older children are far less likely than babies to be adopted, and even when they are adopted, the failure rate of adoptions of older children is disheartening. As mentioned above, most states do not require any showing that adoptive parents have been found prior to terminating a parent’s rights. On the contrary, the rationale is that when a child is “freed” for adoption it will be easier to find an adoptive placement. For older children, this is simply not realistic. Thus state and federal law operate to create legal orphans. The legal and practical effect of terminating rights is to completely sever the mother-child relationship. After termination is ordered, the mother and child have no further visitation rights; indeed, the agency may decline even to tell the mother the child’s whereabouts or news of the child’s well being.

It is possible for incarcerated mothers to continue their relationship with their children in some cases. The best way for a family to avoid termination of the mother-child relationship is to avoid having the children placed in foster care in the first place, if at all possible.

Of course, community-based sentencing for mothers convicted of nonviolent offenses should be made widely available to prevent the separation of the family. Day programs for women to take part in rehabilitation while living with their children should be the preferred sentencing option whenever the woman poses no risk of flight or harm to her family or community. Residential mother-child programs in which mothers care for their babies and young children have been highly successful in reducing repeat offenses, and at the same time prevent the destruction of the family. Community-based sentencing alternatives to keep the family intact are most crucial for very young children and infants who are still in the process of bonding with their mothers, but increasingly should be explored as well to prevent older children from permanently losing the mothers with whom they are bonded. About sixteen states already are operating such programs to keep families with very young children together and provide treatment, but only for a tiny fraction of eligible women. There is a provision in ASFA for demonstration projects to provide substance abuse treatment to mothers while they care for their infants, and such programs have been highly successful in helping women to attain and maintain recovery.

For mothers who must serve their sentences in prison, private guardianship should be considered if the children are not already in the foster care system. The advantages of guardianship are that children stay with a familiar person who loves them, and usually benefit from regular contact with their mother. Many states provide for private guardianships through Probate Court or similar provisions. In Illinois, the mother can appoint a short-term guardian for up to 60 days, without any court involvement. Full legal guardianship can be established in Probate Court. With written parental consent, an appropriate caregiver - a relative or simply a trusted friend - can be appointed as the minor’s guardian by the court in a fairly simple proceeding. Legal service practitioners can assist the family in establishing guardianship, and many caregivers represent themselves in court with assistance from the clerk of court or a volunteer lawyer project. Legal aid providers can help the family set up a smooth transition for the children, caregiver and mother by drafting a co-parenting agreement and by counseling the parties about the exact nature of guardianship, the mother’s residual rights, and the process for resuming custody upon her release. Ethical considerations require that the written representation agreement include a provision stating the parties’ understanding that if a conflict of interest were to arise between the guardian and the mother, the lawyer would withdraw and refer each to separate counsel. In this author’s 14 years of practice such a conflict has arisen in only a handful of cases, largely because of the parties’ joint concern for the children’s well-being, and their cooperation based on their understanding of the children’s continued need for a relationship with their mother. In many instances, the mother moves in with the guardian (often her own mother) and children after serving her sentence. This assists not only her process of reunification with children but also her re-entry into her community.

A somewhat similar provision is possible on a practical if not a legal basis under the foster care system: kinship care. A major difference is that while the mother may continue a relationship with her children, she is far less likely to regain legal custody of them. The provision of foster care by a relative has many of the advantages for children that private guardianship provides, except that the state intrudes into the family’s decisions. As noted above, there is an exception to the mandate to terminate parental rights when children are in kinship care, and many states have enacted that exception in their state laws. The practical workings of kinship care depend a great deal on the caseworkers’ training and professionalism. There have been circumstances in which relatives have been bullied to adopt children or else lose them, when the relatives strongly believed the children needed ongoing relationships with the mothers. In other cases, relatives have been threatened that if they did not adopt, the children would be scattered to strangers’ homes, although the relatives were firmly dedicated to providing a permanent home. Post-adoption services for children with special needs are commonly denied although mandated, making it more difficult for relative caregivers to adopt. It is hard to imagine how termination of parental rights in such cases is in children’s best interests. Last of all, states that have statutes governing open adoption contracts may present one more option for mothers who face permanent loss of their children but hope to have some continued communication with them.

ASFA has exacerbated the plight of women prisoners and their children in foster care. It will take dedication, creativity and determination to fight its destructive impact, and imprisoned mothers, their advocates and service providers will need every bit of ingenuity, compassion, strength and creativity they can tap to handle the crisis.