Child Custody and the Drug War

April, 2006

Suzanne Wills, Drug Policy Chair

In 1970, three years before then President Nixon created the Drug Enforcement Administration, only 5,635 women were incarcerated in the entire United States. Today more than 190,000 are incarcerated, 80% for nonviolent drug law violations. Women are the fastest growing and least violent segment of our prison population. Nearly 12,000 women are incarcerated in Texas. Incarceration on such a scale has profound social consequences. The children of inmates are affected most of all.

About three-fourths of the women in prison have children under the age of 18. Many times the children are sent to live with a grandmother or other relative. When this fails they are sent to foster care. Nearly 30,000 American children are in foster care because their parents are incarcerated.

Under a 1997 federal law, the Adoption and Safe Families Act, states must move to end the rights of parents whose children have been in foster care for 15 of the past 22 months. Prison sentences for many women are longer than 15-months meaning they automatically risk losing their children. Inmates often can't attend hearings on whether their parental rights should be terminated. Often they aren't even informed that the hearing will take place.

The intent of the law is to sever parental rights so that children can be placed in stable, adoptive homes. For some children, especially older ones or those with special needs, that never happens. In those cases, the children remain in foster care, but have no contact or information about their parents.

The U.S. is the only nation that routinely moves to terminate the parental rights of incarcerated parents. In Spain, Portugal, Ireland and Italy, children can stay with parents in prison until the age of 3. In Germany, children may stay until they are 6. Termination of parental rights is rare in these countries. American women are imprisoned at 10 times the rate of European women.

States receive $4,000 to $8,000 from the federal government for every foster care adoption above the previous year. More than $192 million has been awarded since fiscal 1998. Texas received $908,000 in 2004.

In 2003 Texas completed 2,444 adoptions from foster care; 3,766 children awaited placement. In August, 2005, 61,433 Texas children were in foster care. The state does not keep records of the number of children who are in foster care and/or are adopted because a parent is imprisoned. This information could be learned if the Texas Dept. of Family and Protective Services wrote a program to extract it. A fee would be charged by the Department.

Undoubtedly many children are better off to be adopted than to languish in foster care while waiting for their parent to be released from prison. A person who is burdened by the huge financial constraints and requirements of a convicted felon may never be able to care for a child.

The United States is imprisoning its citizens on an unprecedented scale. Texas is at the forefront. The ramifications of this social experiment should be closely scrutinized.

Sources: ”A Law’s Fallout: Women in Prison Fight for Custody,” Wall Street Journal, 27 Feb 06

“Adoption Efforts at the Texas Dept. of Family and Protective Services,” Center for Public Policy Priorities

“2005 Data Book,” Texas Department of Family and Protective Services