In an Illinois prison where mothers are allowed to raise their children behind bars
Image: Getty

A new report from the Marshall Project outlines how child-welfare systems take children away from incarcerated mothers, viewing former or current inmates as unfit caregivers not on the basis of prior child neglect charges, but often simply for being incarcerated.

The problem stems in part from the 1997 Adoption and Safe Families Act, which says state-funded child-welfare programs must “begin termination of parental rights” when a child has been in foster care for 15 of the last 22 months.

But ASFA—which was, ostensibly, designed to protect children—has been used to separate families by child-welfare systems in states across the country with a “bias against poor parents,” as one researcher put it. For poor parents, keeping your kid while you’re in prison becomes a kind of chicken-and-egg problem: It may be the case that your child was placed in foster care because you were incarcerated, and then, unable to attend family court dates, being incarcerated becomes grounds for keeping your child in foster care.

This system weighs harder on incarcerated mothers because their children are much more likely to be placed in foster care than men’s.

As the report pointed out, some states are working to correct this. In 2010, New York passed an amended ASFA bill that created exemptions for the 15-month rule, and Washington enacted a similar law in 2013. A handful of states have piloted programs to allow incarcerated mothers to raise their children behind bars. But it’s still very, very hard—almost impossible—to fight to keep your child from prison.

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As the report puts it:

Yet the ways that other parents with child-welfare cases can stave off that outcome — spending time with their children regularly, showing up for court hearings, taking parenting classes, being employed, having stable housing, and paying child support to reimburse the government for the costs of foster care — are all next to impossible from confinement.

In some cases, showing up is a first and necessary step; the report gives the example of one woman inmate who made it to a court date but almost went unnoticed by the judge:

At one point, the judge said, “The mother in this case is not available, because she is incarcerated,” according to Gamble.

“No she’s not! The mother is sitting right here! I’m here!” she said she shouted from her seat in the courtroom.

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She was able to keep her kids, according to the report. But the fact that not all are so lucky demonstrates how unfair and arbitrary the system is, to begin with.

Read the entire report here.