Academic journal article Columbia Journal of Law and Social Problems

The Sentencing Judge's Role in Safeguarding the Parental Rights of Incarcerated Individuals

Academic journal article Columbia Journal of Law and Social Problems

The Sentencing Judge's Role in Safeguarding the Parental Rights of Incarcerated Individuals

Article excerpt

Incarcerated parents face a disproportionate risk of having their parental rights terminated. According to a recent analysis of three million child-welfare cases nationwide, parents whose children have been placed in foster care due to their incarceration, but who have not been accused of child abuse, endangerment, or drug use, are more likely to lose their parental rights than parents who have physically or sexually assaulted their children. A dramatic rise in the prison population and the passage of the Adoption and Safe Families Act (ASFA) have driven the increase in the loss of parental rights among incarcerated parents. Furthermore, sentencing guidelines and mandatory minimums constrain a judge's ability to adequately consider a defendant's parenthood at sentencing.

This Note examines the sentencing judge's role in preventing the termination of parental rights of incarcerated parents and proposes the establishment of a judicial recommendation against termination proceedings while a parent is incarcerated. Part II of this Note examines the history of criminal sentencing and the historical practice of granting a judicial recommendation against deportation (JRAD) to noncitizen defendants. Part III analyzes the disproportionate rate at which incarcerated parents lose their parental rights as compared to nonincarcerated parents. Part IV argues for amending the ASFA to implement the JRAD's analog in the parental rights context and concludes that accounting for loss of parental rights at sentencing serves retributive, deterrent, and rehabilitative aims.

I.Introduction

In 1999, Hurricane Floyd flooded and destroyed Lori Lynn Adams' trailer home in North Carolina.1 Adams, a mother of four living in poverty, was later convicted and sentenced to two yearlong prison terms for filing a fraudulent disaster-relief claim with the Federal Emergency Management Agency (FEMA) and for passing dozens of bad checks.2 Following the conviction, Adams' four children were consequently placed under county supervision.3

Halfway through her second sentence, Adams received a phone call from her appointed family court attorney; her parental rights were being irrevocably terminated at a proceeding she could not attend due to her incarceration 300 miles away.4 Adams was prohibited from ever seeing her children again, despite never having been charged with child abuse, neglect, or endangerment.5 While acknowledging that she "had to pay the price" for the crimes she committed, Adams characterized the permanent loss of her parental rights as "the most extreme price there is."6

Adams' experience has become increasingly common in recent decades. Since 2006, over 32,000 incarcerated parents who had not been accused of physical or sexual abuse permanently lost their parental rights.7 Approximately 5000 of those parents had their rights terminated solely due to their incarceration status.8 More surprisingly, parents whose children have been placed in foster care due to their incarceration, but who have not been accused of child abuse, endangerment, or drug use, "are more likely to have their parental rights terminated than those who physical1. ly or sexually assault their kids."9 Like Adams, many of these parents are poor and lack access to effective measures to safeguard their rights to their children.10

Changes in child welfare policy and a dramatic rise in the prison population have driven this increase in the loss of parental rights among incarcerated parents.11 For instance, Congress passed the Adoption and Safe Families Act (ASFA) in 1997,12 which required federally funded state child-welfare programs to initiate the termination of parental rights when a child has been in foster care for fifteen of the previous twenty-two months.13 While the ASFA was enacted to reduce children's stay in foster care in favor of a permanent home, an unfortunate byproduct has been the disproportionate rate at which incarcerated parents lose their parental rights compared to those not incarcerated. …

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