MOTHERLESS CHILDREN

The Drug War Has Stamped An Entire Class Of Parents As Permanently Unfit.

Elizabeth Harris still isn't sure why she did it.

She had filled her cart with $80 worth of groceries for herself and her
4-year-old son, and was standing in line waiting to pay for them. On
impulse, she picked up a Bic lighter and slipped it into her pocket. In a
lifetime that had already given her plenty to regret, Harris would come to
regret this action more than any she had ever taken. It would trigger a
chain of events that, three years later, has left her unlikely ever to see
her child again.

It's worth mentioning that Harris, 39, is not simply a shoplifter; she is
also a drug offender, with a lengthy history of using and selling
methamphetamine. It's a history she says drew to a close within the last
few years when, in fits and starts, she managed to get herself into a rehab
program, secure permanent housing, stop using drugs and stabilize her life.

But Harris didn't do these things quickly or consistently enough; didn't do
them on the timetable handed to her by the court that claimed jurisdiction
over her son in the wake of her shoplifting arrest. As a result, like a
growing number of women caught in the crushing nexus of the criminal
justice and child welfare systems, she has seen her parental rights
permanently terminated and her child placed for adoption.

In an election season that finds both major candidates throwing themselves
at the feet of the sacrosanct "middle-class family," both have publicly
ignored an aspect of national policy -- the ongoing drug war -- that has
permanently destroyed thousands of families that don't fit the campaign
ideal. This crusade, which escalated under the current administration, is
unlikely to reverse course under the next, whoever wins the election. In
fact, the drug war is succeeding where the culture wars of previous
election cycles failed, in writing legions of "undesirable" American
families out of existence entirely.

These families are dissolving under the pressure brought by a combination
of laws and policies that can truly be called bipartisan achievements: a
new emphasis in child welfare law on adoption and speedy termination of
parental rights (a favorite policy of President Clinton's which George W.
Bush has parroted so enthusiastically); mandatory sentences for drug
offenders (a legacy of the Reagan/Bush Sr. years that the Clinton
administration has made no effort to reverse); welfare reform (trumpeted by
Al Gore in the first presidential debate as a heartwarming bipartisan
success story); and a shift in enforcement of so-called "deadbeat dad"
child support laws to target single, incarcerated mothers. The net result
is that women who serve time on even relatively minor charges may find that
the penalty for their crime includes forfeiture of their motherhood.

This loss is especially devastating for women struggling with drug
involvement, say researchers and social workers, because when they lose the
role of mother, they lose one of the most powerful motivations for
recovery. For these women's children, who have a hard time understanding
that their mothers have disappeared not by choice but by decree of the
court, the legal termination of their relationships with their mothers is
often experienced as profound, and confusing, abandonment.

The Adoption and Safe Families Act (ASFA), passed in 1997, has hit
prisoners and ex-offenders particularly hard. ASFA mandates that the states
begin proceedings to terminate parental rights once a child has been in
foster care for 15 out of the past 22 months -- six months if the child is
younger than 3 years old. The law also promises bonuses of up to $6,000 for
each adoption over pre-ASFA levels.

Championed by Hillary Clinton and popular with child welfare advocates,
ASFA was written to address the needs of children who spend years or
decades bouncing from one foster home to another while their parents blow
chance after chance to get their lives together. But, as with any pendulum
swing, ASFA has had some extreme consequences, sweeping many parents into
its net before they have had a fair shot at preserving family bonds.

Both adoptions and terminations of parental rights are rapidly increasing
across the country. There were 46,000 children adopted out of foster care
in 1999, up from 28,000 in 1996; and the number of additional children
whose parents' rights had been terminated and who were "waiting for
adoption" grew from 37,000 in March of 1998 to 46,000 in September of 1999.

Meanwhile, as a result of the drug war, women have become the
fastest-growing segment of the prison population. The number of women in
state and federal prisons has increased fivefold in the last three decades,
to 84,400 at the end of 1998, and the tide shows no sign of slowing, much
less turning. Eighty percent of incarcerated women are mothers, and because
most women prisoners are single mothers, their children are particularly
vulnerable in their absence.

Across the country, those who work with incarcerated women say they have
seen a particularly steep increase in terminations of parental rights among
prisoners -- an increase which, as stepped-up enforcement of ASFA collides
with the ever-larger numbers of women pouring into prison, many expect will
turn into a flood.

Philip Genty, clinical professor of law and director of the Prisoners and
Families Clinic at Columbia University Law School, sees more than 150
prisoners a year in New York-area facilities (where he and his students
lead family law workshops) and has written widely on termination of
parental rights. Prisoners facing termination proceedings were once the
exception, says Genty; now, among those whose children are in foster care,
they have become the rule.

"It is a very rare situation where a woman prisoner with a child in foster
care has not been confronted with this," Genty says.

The reason for this lies in simple arithmetic: Long sentences for drug
offenses leave many prisoners doing stints for even minor infractions that
exceed ASFA's six- and 15-month time limits. In New York, 91 percent of
women convicted of felonies, including low-level nonviolent crimes, will
serve at least 18 months -- three months more than the longest ASFA time
limit. Social services departments, Genty explains, "feel that ASFA puts
pressure on them to move children out of the system quickly even when they
think there may be a decent relationship between parent and child. They
don't have the ability to wait for the parent to get out of prison."

Marilyn Montenegro, prison project coordinator of the California chapter of
the National Association of Social Workers, says many social workers are
themselves "very frustrated" by the constraints under which they are forced
to operate. Most social workers, says Montenegro, believe that ongoing
contact with biological parents is "almost always in the best interests of
the child," but the law does not create a means to facilitate that contact
if parental rights must be terminated by a particular date. "They [social
workers] say, 'My hands are tied. There's nothing I can do,'" says Montenegro.

The laws passed to implement ASFA vary from state to state. New York passed
a relatively mild version last February that did not change any of the
grounds for termination of rights but did, as required, incorporate the new
federal timetables. According to Genty, at least half the remaining states
now have legislation on the books that makes specific reference to
incarceration as a factor in or grounds for termination; in these states,
it is safe to assume that the number of prisoners who lose their parental
rights would be even higher than in New York.

Illinois, for example, has passed a particularly harsh ASFA law, adding
several new grounds for termination that specifically target incarcerated
parents. Under a "three strikes"-style provision of the Illinois law, any
parent with a child in foster care who has three felonies with one in the
past year (including possession, writing a bad check or shoplifting, if
they are charged as felonies) is presumed "unfit" and is subject to
termination proceedings. The same goes for parents who will be incarcerated
for the next two years, or who have already been locked up repeatedly. The
result, says Joanne Archibald, advocacy director for Chicago Legal Aid to
Incarcerated Mothers, is that "more and more women are losing their kids."

Attorney Lynn Vogelstein, currently a fellow at the Institute for Children,
Families and the Law at New York University's School of Law, worked until
recently with South Brooklyn Legal Services, which represents former
prisoners in family court. Among New York's incarcerated mothers, she says,
the typical scenario involves a woman who hits the 15-month time limit
while behind bars and find her rights terminated on the grounds of
"permanent neglect and abandonment," defined under New York law as having
had no contact with the child during the past six months.

Sometimes, says Vogelstein, women whose children are in foster care do not
inform the caseworker when they are arrested because they believe to do so
would make their situation worse. They don't realize that their silence can
be construed as "abandonment." Other women, Vogelstein says, find their
rights terminated for "failure to plan" for the child's future needs,
despite the fact, she notes, "that it's very hard from jail to plan for the
return of your child."

The result, says Genty, is that "the mood in prison is one of despair.
Essentially, what incarcerated parents are being told is that no matter
what they do, how hard they work at overcoming the issues that put their
children in foster care and brought them to prison, they cannot avoid
having their parental rights terminated."

Even those inmates who manage to get out of prison with a little sand left
in the hourglass face a daunting obstacle course if their children are in
foster care. First, the social services department gives them a
reunification plan that might require, for example, that they complete a
drug treatment program, attend a parenting class and provide a stable
residence for their children. Since anyone with a felony drug conviction is
ineligible for benefits, including housing, under welfare reform laws in
many states, this last stipulation may prove particularly challenging. A
criminal record also makes finding a job difficult, so market-rate housing
is likely out of the question.

Former prisoners who do manage to obtain legal work may find their wages
garnished by as much as half under child support enforcement laws.
Designated "non-custodial parents" during their time behind bars, prisoners
can be held liable for welfare or foster care payments received in their
children's name during their absence. With interest and penalties for
nonpayment, prisoners with several children may wind up with bills in the
tens of thousands of dollars.

Residential drug treatment may look like the only answer, but budget cuts
have left many programs with long waiting lists -- longer than the time
allotted to fulfill the requirements for reunification. The net result is
that many former prisoners fail to meet these requirements and termination
proceedings begin.

The women most affected by these laws and policies are not generally model
citizens. They have hurt their children through their involvement with
drugs or through their involvement with boyfriends or husbands with ties to
drugs. The question is whether the current cure -- lengthy incarceration,
minimal treatment and, increasingly, the permanent severance of family
bonds -- is worse than the disease.

Elizabeth Harris is still trying to absorb the judge's decree, handed down
a year ago, that she is no longer mother to her now 7-year-old son Anthony.

"It's a nightmare going through my head over and over," Harris says. "In
the last two years, I have turned my whole life around. I haven't had any
police contact, I have a car, a job, I maintain my home. My life has been
good from when I started my [rehab] program, but as far as the system is
concerned, it was too little, too late."

Harris' "nightmare" began two days after her release from jail following
her shoplifting arrest. She had spent 30 days behind bars, during which
time her sister cared for her son. The day after her release, Harris did
not make it to a drug rehab program where her sister had secured a bed for
her because, she says, she had to obtain a public defender and show up for
a court hearing that day. She failed, however, to communicate these details
to her sister, who assumed Harris simply hadn't bothered to show up and
responded by delivering Anthony to the local police station and declaring
him "abandoned" rather than returning him to Harris. Unable to locate
Harris, who lived in a different county than her sister, the police handed
Anthony over to social services, which obtained jurisdiction over him and
placed him back with Harris' sister, then in foster homes.

In the months that followed, Harris became deeply embroiled with the
Department of Social Services and the court. She was given a reunification
plan that required her to enter drug treatment, secure housing, attend a
parenting class and get therapy. Harris says that the drug treatment
programs she contacted either had long waiting lists or couldn't reach her
when they did have an opening because she was homeless (finding housing was
virtually impossible in a market where prices had gone through the roof).
Once she managed to secure therapy the department would no longer pay for
it because her reunification services had been cut off. Armed with evidence
of Harris' failures, the court terminated her parental rights and Anthony
was placed for adoption.

Harris feels that when she turned to social services for help, she came up
against an impenetrable bureaucracy that failed to adequately communicate
its requirements, then penalized her when she could not meet them. The
department maintains (in reports her social worker submitted to the court)
that Harris continued to live a life of instability and probable drug use
despite the fact that she had been offered both help and a clear warning of
what would happen if she did not change her ways.

This kind of perception gap, says attorney Vogelstein, is not uncommon.
Often, she says, caseworkers first meet a client at her very lowest point,
so they may not be receptive to evidence of transformation. By the time
Vogelstein meets them, often months later, "a lot of my clients are doing
great things, but have been unable to communicate that to the agency."

Even when social workers are aware of the obstacles their clients face in
meeting the criteria for reunification, they often find themselves caught
between the requirements of the law and the realities of limited resources.
"The social workers' charge is to act in the best interest of the child,"
says Marilyn Montenegro, "but they're really not given enough tools to do
that very well. There isn't anywhere people can go where there's a nice
place to live that's affordable. None of the people in the system have the
ability to create that, so they're all stuck with the same old thing."

Harris doesn't claim to have been an ideal mother. "Part of the problem
with substance abuse is you don't think you're doing anything wrong," she
explains. It was only once she got into a rehab program that she realized
the parenting standards she had set for herself were far too low. "I
thought I was doing a good job by just providing a roof over the head,
paying the utilities," she says. "But I wasn't there mentally and
emotionally, putting his needs first."

Harris has even come to understand her sister's decision to turn Anthony
over to the police. "She knew it wasn't fair the way I was raising him,"
Harris says. "And I know she meant it in my best interest for somebody to
intervene. Somebody had to do it. She just didn't know the system -- the
way it worked."

When the courts first removed Anthony from her care in the wake of her
arrest, Harris says, "I had nowhere to stay and was still using drugs. It's
hard for someone who's never been in that situation to even imagine what a
person goes through. And then to give you a certain amount of time to
either clean your shit up or it's over -- I don't think there's any time
frame you can put on a person."

Ida McCray-Robinson, the family services coordinator at the county jail in
San Francisco, spends her days organizing parenting classes, communicating
with social services departments and talking with prisoners about their
kids. Her evenings and weekends are consumed by the same labor; McCray
founded the nonprofit Families With a Future, which facilitates contact
between prisoners and their children at various state and local facilities,
and runs it in her spare time.

"Half the women in here have lost children," says McCray-Robinson, 49,
standing outside a women's unit at the San Francisco County Jail. And it's
not just happening to women with lengthy sentences, adds McCray-Robinson.

"Momentary arrests, where she's out in two days, mean a woman could lose
her kids. She gets arrested for petty theft, or whatever. There's nobody to
take the kids. Child Protective Services gets involved. They take the kids
to the nearest emergency shelter. Now they've opened a case. When that
person gets out in two days or two weeks, she can't meet the requirements
to get her kids back. And if that baby is under 3 years old, they've got
their eyes on that baby, big time, because of the adoptability factor."

For many women, this is the point at which despair kicks in -- at their own
failures, their children's resultant suffering and the seeming omnipotence
of a bureaucracy that many find incomprehensible, if not hostile. They
often treat this despair with methamphetamine, heroin, crack cocaine --
taking themselves one step further from the rehabilitation that is
ostensibly the motive for incarcerating drug addicts.

According to Philip Genty, helping prisoners maintain family contact is one
of the most effective means of achieving successful re-entry into society.
When you eliminate that prospect, Genty says, "it removes one of the most
effective tools towards rehabilitation."

That has been Lisa McDonald's experience. A crack cocaine and heroin
addict, McDonald, 38, has been in and out of jail over the years; she is
currently at San Francisco County Jail awaiting sentencing. Her last stint
behind bars was four months for a probation violation. Her infant son was
in foster care at the time and McDonald was released to a residential rehab
program. Only when she called her social worker and asked for a visit with
her son did she learn that her parental rights had been terminated while
she was in custody.

Because she had not been notified of the hearing at which her rights were
terminated, McDonald was granted another hearing after her release. By that
time she was working at a center for the homeless, the first legal job she
had ever held, and had completed a parenting program. Counselors from the
rehab program accompanied her to the hearing, and she presented the judge
with her parenting certificate. "Miss McDonald," she says the judge told
her, "you've made a great improvement." But time had run out, and the
termination was upheld.

"I felt like, 'What did I do all this for?'" McDonald says. "From that
point on I degraded myself. The judge says 'no,' and it's like you are a
bad person. That's the message I got, and in an unconscious way, I must
have believed it, because after that, I wasn't really interested like I
first was in my recovery. So nine months go by and I relapse, and that's
how I end up back here." As a repeat offender, McDonald is now facing a
possible three-year prison sentence.

Ida McCray-Robinson has experienced the rehabilitative power of family --
personally as well as professionally. She was 19 when she participated in
an airplane hijacking orchestrated by a boyfriend. By the time she was
arrested after 16 years on the run, McCray-Robinson had five children, who
went to live with McCray-Robinson's mother and then with friends during
their mother's 10-year stint behind bars. Staying in touch with her
children, who visited regularly while she was incarcerated, "gave me a
means and a reason to live and not be as awful as I could," McCray-Robinson
says.

But her well-being was not the sole benefit of maintaining contact with her
children, she adds. More important than her access to her children was her
children's ability to have access to her, says McCray-Robinson. She and
other social work academics believe that a child needs to have some contact
with its parents, whether or not they are capable of providing for their
needs at that time. Unfortunately, adoptive parents often don't provide
children with regular access to their biological parents. There is no
requirement that they do so, and many children adopted out of foster care
lose touch with their biological parents (and their siblings) entirely.

"It doesn't matter whether you're a political prisoner, a robber or a dope
fiend," McCray-Robinson asserts, "your children are mad and hurt if you're
not there. An unspoken promise has been broken -- that they're going to
have a mother to love them and take care of them.

"I hear people asking, 'How long should we wait until parents get it
together?' I think there should be no limit (beyond which) there cannot be
communication, except in cases of abuse. If somebody wants to be in touch
with their parent, they should always have the right to know who they are
and where they are."

But what about the argument that a child whose mother is likely to serve a
long sentence deserves a permanent home, even if the price is loss of
contact with that mother?

"I think you should ask my kids that," McCray-Robinson says.

McCray-Robinson's son Jundid was 3 years old when she was arrested and 13
when she was released. He now lives with his mother, his grandmother and
several other family members on a quiet cul-de-sac in San Pablo, Calif. In
the grassy front yard of his family home, a sprinkler arcs through the dusk
as Jundid -- a soft-spoken 17-year-old in pigtails, a Reggae On the River
T-shirt and gray sweats -- grapples with a question he did not have to face
as a child.

Growing up without his mother in the house, Jundid says, was hard.
"Everything that a person takes for granted, I missed so much. Whether it
was cooking breakfast in the morning. Having a homemade sandwich instead of
a bought lunch. Or just being able to say, 'Let me go home and ask my mom.'"

But Jundid is not convinced that severing his legal tie to his mother in
the name of "permanency" would have healed these wounds. Visits with his
mother, he says, anchored him throughout his childhood. "We made the most
of each visit that we had. And my mom was very special about trying to give
time to each child. Like for my sister, she would sit there and braid her
hair while she had her little private time to talk to her. I remember she
used to teach me karate. I'd show her my muscles, even though I didn't have
any. But just me being relaxed and having fun with my mother is what I
remember most.

"I couldn't even begin to express to you in words," he continues solemnly,
"how fulfilling that was to my soul to give my mother a hug. For her to
give me a kiss. For me to sit on her lap. And for me to not do that because
of what someone else thinks -- I would have felt very empty then, as a
child, and maybe as well now."

When his mother returned to his daily life after 10 years, Jundid says, the
adjustment was difficult but also exhilarating. He recalls asking her to
walk him to school, despite the fact that he was a teenager, to make up for
an experience he had missed as a child.

"A lot of kids are ashamed that their moms are walking them to school," he
says. "But I was so happy for her to be in my presence, and for the first
time in my life to even come to my school, that I couldn't care less what
people thought."

Through his ongoing contact with his mother throughout her 10-year
incarceration, Jundid says, he learned something crucial about families:
"When it's hard times, you stick together. And that was just a hard time."

Ellen Barry, founding director of San Francisco's Legal Services for
Prisoners with Children, believes the kind of access Jundid had to his
imprisoned mother is something all children deserve. "Kids own the right to
have a relationship with their parents," Barry says, "even if they're not
the best parents. The child has a right to be angry, to ask the parent to
explain her behavior. That's his choice, not the society's choice. Society
does have an obligation to keep children safe, but that's very different
from terminating parental rights."

In fact, Barry points out, termination of parental rights is a concept most
children can't begin to grasp. "It makes no sense to them that the court
could come in and, with a wave of the hand, decide that the mother who gave
birth to them is no longer their mother. Whether she's able to take care of
them at this moment is a separate question."

Elizabeth Harris often wonders how Anthony understands her disappearance
from his life. "He'd just turned four when all this happened," Harris says,
"and what he understood as far as why he wasn't in mother's care was, 'Mom
had a drug problem and she had no place for you to live.'

"So he always thought if Mom got a house and went to this (rehab) program,
that he'd come back home. Now he's 7, and Mom did all these things, and
he's still not home. You've got to wonder where his little mind takes him.
He's still my child, and there's always gonna be that question in his mind:
'How come I'm not with Mama?'"

It's a question that has gone unasked and unanswered this election season,
despite the hundreds of references to "family" sprinkled throughout the
campaigns. Most prisoners and many convicted felons aren't allowed to vote,
so they are, by definition, no one's constituency. Their children are
equally disenfranchised, and even more rarely heard from. At a political
level, these two groups are simply not needed, so the fact that they may
need each other is easy enough to ignore.

But despite the silence at the federal level, elsewhere in the country a
conversation is opening up on the staggering costs -- societal as well as
economic -- of the drug war, and voters are, incrementally, being given the
opportunity to consider alternatives. California voters, along with
choosing a president this November, will also consider an initiative that
would send nonviolent drug possession offenders and parole violators into
treatment rather than jail or prison; a poll found support for the
initiative at 55 percent. Arizona has already shifted to a treatment-based
model, saving taxpayers an estimated two dollars for every dollar spent.

The war on drugs costs millions, fills prisons, and appears to do very
little to stop people from using drugs. Compounded by severe social and
child welfare policies, it is also decimating families across the country.

Children have long been used as a rhetorical weapon in this war, as in "We
need to lock these people up before they get our kids hooked on crack." But
"our kids" include prisoners' kids in ever-increasing numbers. What might
it mean to them to have mom in treatment instead of behind bars; to know
that she might ultimately recover from her addiction and be restored to
them? The 10 million children who have seen a parent arrested and
imprisoned offer the most compelling reason there is to open up the debate
on treatment vs. incarceration and whether it is fair to punish parents
(and children) by splitting them up -- permanently.