Parental Rights

A LAW'S FALLOUT: WOMEN IN PRISON FIGHT FOR CUSTODY

It Encourages Adoption Of Many Foster Kids; Mothers Lose Contact

CHEEKTOWAGA, N.Y. -- In January 2004, Tamika Davis was leaving a
department store in a mall with her son, when security officers
nabbed her for stealing men's jeans and shirts. Her children, an
11-year-old boy and a 7-year-old girl, were eventually sent to foster
care. Last summer, while Ms. Davis was completing her jail term,
child-welfare authorities moved to end her parental rights, so the
children could be available for adoption.

Now free, Ms. Davis, 29, is fighting the move. In November, she
admitted to a Buffalo family court judge that she neglected her children.

Still, she wants to retain custody of them. "I'm numb," she says. "I
fear I'll never see my kids again." Under a 1997 federal law, states
must move to end the rights of parents whose children have been in
foster care for 15 of the past 22 months.

The law, known as the Adoption and Safe Families Act, was intended to
keep abused or neglected children from languishing in foster care
while their biological parents, often drug-addicted, tried to kick
their habits. Since then, the population of women in prison has
exploded -- to more than 104,800 from 79,624 -- and now the law is
raising difficult questions about what is best for children whose
parents are incarcerated. Some say children need to stay connected to
their parents during that traumatic time. Others contend the women
have demonstrated that they are negligent and unfit and it is better
if the state can find the children a permanent new home. Once their
rights are terminated, the law forbids parents to see their children,
or even know where they are. Prison sentences for many women are
longer than the 15-month period the law dictates, meaning they
automatically risk losing their children.

Inmates often can't attend hearings on whether their parental rights
should be terminated. In some cases they aren't even informed about
those hearings, which may be held hundreds or thousands of miles away.

The U.S. is the only nation that routinely moves to terminate the
parental rights of incarcerated parents whose children are in foster
care, according to international family-law specialists.

The Act also created a financial incentive to encourage adoption.

States receive an "adoption bonus" of $4,000 to $8,000 in federal
money for every foster-care adoption above the previous year. More
than $192 million in adoption incentives have been awarded to states
since fiscal 1998, when the first bonuses were issued. The rate of
incarceration of women has increased faster than that of men in recent years.

The increase has been fueled by state laws mandating minimum drug
sentences and on the federal side by restrictions on granting
leniency to single mothers. The 15-month time frame for terminating
parental rights is too stringent, some say, imposing a standard that
is impossible for many women in prison to meet. Even after women are
released from prison, most can't immediately set up a home stable
enough for children. The Act creates a situation that is "a violation
of the fundamental rights of parents and children to have
relationships with one another," says Tamar Kraft-Stolar, director of
the Correctional Association of New York's Women in Prison Project.
The nonprofit group will release a report soon calling for changes in
a New York law with requirements similar to the federal act. The
report argues that the government should make exceptions to the
15-month rule for inmates with children in foster care. It recommends
that child-welfare agencies help maintain relationships between
children and their incarcerated parents.

About three-fourths of the women in state and federal prison today
have children under 18. There are nearly 30,000 children in foster
care because their parents are in jail or prison.

Cases involving parental-rights termination of incarcerated parents
more than doubled from 1997 to 2002, according to a study of 2,500
cases by Philip Genty, a Columbia University School of Law professor,
conducted for a report by the Child Welfare League of America.
Authors of the law say it is intended to work in the best interest of
children, not their parents.

Cassie Bevan, a senior policy adviser to the House majority leader
and an architect of the Adoption and Safe Families Act, says, "We
looked at prison sentences, but we weren't that sympathetic." Richard
Gelles, another ASFA architect and dean of University of
Pennsylvania's School of Social Policy & Practice, says, "the fact
that the criminal justice system locks women up for too long can't be
a reason why children's development is held hostage."

The Law's Intent

The intent of the law is to sever parental rights so that children
can be placed in stable, adoptive homes.

But for some children, especially older ones or those with special
needs, that may never happen.

In those cases, the children remain in foster care, but have no
contact or information about their parents. Some European countries
allow incarcerated women to keep their children with them, says
Eurochips, a Paris group working on behalf of children with imprisoned 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 most of these countries.

On the eve of her daughter's June 1999 birth, Detra Welch was
indicted in an Illinois state court in Chicago for possessing crack
with intent to sell. Ms. Welch was a long-time abuser, she says, and
her baby, Gwynne, was born addicted, according to court filings.

Ms. Welch spent just two days with the child in the hospital before
returning to prison.

It was her third prison term in seven years. Gwynne was placed with a
foster family trained to deal with problems she might face, according
to court records.

Her foster mother has a master's degree in early-childhood education.

The family wanted to adopt Gwynne. Ms. Welch, a high-school drop-out
at the time of her release, wanted to keep the child. The baby made
Ms. Welch view prison differently this time, she says. She attended a
drug-rehabilitation program in prison. "I really wanted my baby, and
I wasted so much time in my life," says the 37-year-old Ms. Welch,
who says she began using crack at 16. Her late father was an
alcoholic, she says, and three of her sisters are drug addicts.

Ms. Welch says she sees her 20-year-old son, who was raised by his
grandmother, infrequently. He was recently released from prison,
after serving time for possession of crack cocaine. "He'll listen to
me eventually," she says. When she was released from prison in 2002,
Ms. Welch signed up for an outpatient substance-abuse program at
Chicago's Haymarket Center, a nonprofit facility.

After completing the program, Haymarket hired her full-time to work
with addicted mothers, a job she holds today. "Detra is one of the
best employees I've ever had," says Mary Jane Miller, clinical
director of women's services at Haymarket. "She's dependable, loyal
and an incredible communicator." In 2002, Ms. Welch had several
visits with Gwynne, supervised by county social workers.

She says the child bonded with her, often crawling into her lap and
stroking her face. The last visit was in December 2002. Five months
later, her parental rights were terminated by a judge who ruled that
her repeated incarcerations made her unfit to parent Gwynne.
Appealing the Ruling Ms. Welch appealed the ruling, arguing she now
was in a position to give her daughter the life that she herself
never had. While noting Ms. Welch had made "substantial progress
toward correcting her life as she sought to regain custody of her
child," an appellate court panel ruled in 2004 that her prison terms
"prevented her from discharging her parental responsibilities." The
judges said, "Sometimes there is just too much history." In May 2005,
Illinois's highest court upheld the termination. "Were it not for the
fact that a halfway house put her on its payroll as a detox
specialist, it is difficult to see how she could even support herself
financially," the court said. "I was shocked," says Ms. Welch, who
calls the resolution "double jeopardy" because she was punished twice.

The courts "went on my past -- but that's my past." Ms. Welch
completed a high-school equivalency degree in 2004 and now is
studying for a college degree. Today, she doesn't know where her
daughter is, or the names of her adoptive parents. Many family-court
records relating to minors aren't public. "I'm all right and I have
to accept it," Ms. Welch says. "God got me here for a reason."
Incarcerated mothers often aren't even informed of efforts to
terminate their rights to their children, according to a
soon-to-be-released report by the Correctional Association of New
York, an independent group that monitors women's prisons.

The report says correctional facilities frequently fail to follow
"basic steps" to bring inmates to termination hearings.

Jacqueline Smith spent more than nine years in a federal prison in
Connecticut for possessing crack cocaine with intent to sell. She
says the first time she learned she might lose her parental rights
was when her daughter, Tracey, then 9, confided to her during a visit
that she was going to be adopted. "Adoption?' Where'd you get that
from? Nobody said nothing to me about this," Ms. Smith recalls
telling her. When she asked to attend hearings where the termination
of her parental rights would be discussed, Ms. Smith says prison
authorities turned her down. Federal prisons aren't required to
transport inmates to state court proceedings. Rachel Chapa, a
spokeswoman for the women's federal prison at Danbury, Conn., where
Ms. Smith did her time, says the Bureau of Prisons' practice is to
allow inmates to participate in civil family court matters by
telephone, or even video phone.

These types of calls aren't monitored, she adds, as other calls are.
Ms. Smith had a court-appointed lawyer whom she says she spoke with
by phone a few times. "My lawyer told me to give it up," Ms. Smith
says. She refused, writing letters to the judge and corresponding
with the daughter she rarely saw. Meanwhile, her daughter was
shuttled around, living in eight different foster homes in seven years.

Except for her final placement, which lasted two years, "everyone
else was in it for the money," says Tracey, now 17. Both mother and
daughter protested the idea of Tracey being adopted.

Tracey says she made her feelings clear to social workers, who take
youngsters' views into consideration, especially those over 12 years
old. The goal for Tracey was eventually changed to reunification with
her mother, who got out of prison in 2004. The two now live in an
apartment in Brooklyn. Ms. Smith works as a manager at an Applebee's
restaurant and Tracey is in high school. "She made mistakes in her
life," Tracey says of her mother. "But I still knew I wanted her to
be my mom and that I didn't want to be adopted." To keep their
children out of foster care, incarcerated women often try to place
them with family or friends, but that doesn't always work out. After
her arrest in Minnesota in 2003 for possessing and intending to sell
methamphetamines, Katrina Thielen Schultz lost custody of Mercedes
Entemann, now 7, and Chance, 4. Mrs. Schultz's sister agreed to take
the children, but was disqualified by child-welfare authorities
because of a driving-while-intoxicated offense committed by her
husband in 1999. A felony conviction often disqualifies an adult
caring for an inmate's child.

Instead, Mercedes and Chance were turned over to a foster family.
Parental-rights termination proceedings began in 2004. Incarcerated
in a federal prison in Alderson, W.Va., Mrs. Schultz was unable to
attend the termination hearings, which were in Minnesota. Many women
believe they could do a better job defending themselves than the
court-appointed lawyers they rarely meet. Mrs. Schultz's efforts to
keep the children turned in her favor, but because of a fluke: last
year, a court heard evidence that her daughter was mistreated in
foster care, according to her and her lawyer.

The records in that case are sealed.

Mrs. Schultz's mother-in-law, who isn't the biological grandmother of
the children and didn't know them well, agreed to take them in. Last
August, Mrs. Schultz saw Mercedes and Chance, who had just come out
of foster care, for the first time in more than two years. "I will
never take my children for granted again," she says. The children
were relieved, but confused. "Thank you, God, for the house we live
in and the food we eat -- and that we have our family back," Mercedes
prayed at lunch one day, a week after she arrived at her new home in
Gloucester, Va. 'Mommy Laura, Mommy Trina' Yet Mercedes says she
won't forget her foster mother, who she calls "Mommy Laura," to
distinguish her from "Mommy Trina." Though she says her foster father
made her "clean toilets with a toothbrush" when he was mad, she says
she still misses the family. For some incarcerated mothers, the
question they struggle with is whether they ought to have their children.

Kimberly Webster says she was "the lousiest mom" and worries about
how good a parent she will be if she can regain custody of her son,
Anthony, 8. There were days, she says, when she was so high on drugs
that she didn't bother to change her baby's diaper.

Ms. Webster, 29, lost custody of her son in May 2003. He went to
foster care, but in 2004, went to live with her ailing mother. She
finished a jail sentence in the "Women in Transition" facility, a
prerelease program for substance abusers in Salisbury, Mass., this
month. "I don't know what to expect when I leave here," says Ms.
Webster, who hopes to be reunited with her son. She knows the risks
of falling back into substance abuse, for she once was off drugs for
four years and then relapsed, she says. "I don't want to fail him
again." Lawyers who assist women in their uphill battles worry, too.
Mary Beth Feindt helped her client, Latasha Brown, win parole and
more time to fight termination proceedings. Ms. Brown, 27, pleaded
guilty to second-degree manslaughter after killing her partner with a
kitchen knife.

In prison for 23 months, she rarely saw her two children, now 7 and
3, who are in foster care. She learned to read and write so she could
write to them. Proud of her newly acquired literacy, she says she
plans to "take my children to the library and read to them." Ms.
Feindt, her attorney, says she hopes Ms. Brown will get the long-term
therapy, parenting assistance and other services she will need. "I do
wonder how I would live with myself if I get the kids back and
something goes wrong," Ms. Feindt says. After being released from
prison, many women go back to the same communities, without a job or
a place to live. "It is unreasonable to expect these women to resume
parenting and make good choices," says Marilyn Montenegro, a Los
Angeles social worker who counsels women in prison and believes they
should be given more time to put their lives back together after
getting out. The "rigid timelines" set for moving to cut off parental
rights after children are in foster care for 15 months "aren't
realistic," she says. Ms. Davis, the woman arrested for stealing
jeans and shirts at the Cheektowaga, N.Y., mall, recalls that when
she was 7, her mother would steal minks as she looked on. "I was the
only kid I knew who went to school wearing a mink stole," she says.
While she was serving her most recent sentence, her mother, who gave
birth to her at 15, was also in prison, she says. Ms. Davis's arrest
at the mall wasn't her first.

An arrest in 2000 on assault charges forced her to find care for her
children while she served 18 months in state prison.

Leaving them with fathers wasn't an option: her son's dad was serving
a 100-year prison term for murder, while her daughter's father died
of gunshot wounds.

Ms. Davis left her son, Ramon, and daughter, Destiny, with an aunt
while she did her time. During her most recent time in jail, her
children ended up in foster care. After they had been there for more
than 15 months, the state, as required, moved to terminate Ms.
Davis's parental rights. While in jail, Ms. Davis took the parenting
classes required for reunification with her children.

She also attended Alcoholics Anonymous and drug-rehabilitation
sessions, even though she says she doesn't have an addiction problem.

Every Thursday, social workers brought her children for visits. In
March, her son, then 10, wrote her a letter: Mom You have to get your
self strate.

I cannot wait until you get out of jail so we can start all over again.

You will get a job and we can have a good life. You know I love you
badly just try to be right in jail so you can have us back. I love
you mom. "The kids tell me they really want us to be together again,"
Ms. Davis said in August, days before her release from the Erie
County Correctional Facility. She planned to find work and save money
for an apartment and furniture. One day, she told her children, she
would go to school to be a hairdresser. It was an ambitious dream for
Ms. Davis, a high-school drop-out who says she has held only one job,
a stint at a supermarket before her children were born. Instead she
says she made her living as her mother had: supplementing welfare
benefits by being a "booster," stealing goods and selling them on the
street. "I'd make $350 to $500 a day," she says. "It paid the bills
and gave me Chanel pocketbooks." After her release from jail in
August, Ms. Davis moved in with an aunt, who asked her for money.

Unable to pay, she went to stay with a cousin. On Sept. 8, Ms. Davis
had her first postincarceration hearing on ending her parental rights.

When the hearing began, she wasn't there.

An hour and 20 minutes after her scheduled court appearance, she walked in.

'I Don't Understand'

The lawyers and social workers had gone; the judge had moved on to
other matters. "I didn't have money for the bus, and I had to walk in
the rain," Ms. Davis explained, wondering why no one waited for her.
"I don't understand how I got into this mess." A week earlier, she
says she sought work as a dietary aide in a nursing home. She arrived
two hours late for the interview, she says, and when she tried to
reschedule, she was told the job was filled. On Sept. 26, Ms. Davis
went back to the Cheektowaga Mall. This time, police say, she stole a
Coach purse, a gold bracelet and earrings, shoes, a jacket, jeans and
belt and child's jacket and hat. Ms. Davis agreed to enter a drug
program in lieu of a jail sentence. After Ms. Davis missed two weekly
visits with her children, her son worried that his mother "might be
dead," according to a report given to Ms. Davis's lawyer in October
by social workers. "These kids really care about her," says David
Blackley, her lawyer. Child-welfare workers recommended Ms. Davis
agree to a conditional surrender of her parental rights.

This would enable her children to be freed for adoption, but would
still give her occasional visits with them. Ms. Davis rejected this
because she doesn't want her children to be adopted. Last month, she
returned to court, trying to keep her children.

One of the children's social workers said Ms. Davis had made a
"remarkable turnaround," because she now is showing up on time for
visits with her children and has found a place to live, a
$250-a-month apartment paid for directly by welfare. She remains
unemployed. Child-welfare workers said Ms. Davis's children were
struggling but still attached to her. She was required to show
receipts for the Christmas presents she gave them, to prove she had
purchased them. Her case will be considered again in July. By then,
Ms. Davis must have a "suitable income," the judge said. "You have
six months to get your act together," said Erie County Family Court
Judge Patricia Maxwell. "You've got to decide whether you can be a
mother." Ms. Davis has already made that decision.

She says she recently learned she is pregnant.