The Second and the Fifth courts of appeal recently issued opinions involving incarcerated parents. In the Fifth’s case, a child was adjudicated dependent and the disposition order forbade any contact between the incarcerated father and the child. In the Second’s case, a mother petitioned to terminate the rights of an incarcerated father. In both cases, the courts of appeal reversed the decisions of the trial courts.
Incarcerated parents cause a lot of consternation for the child welfare system. So much so that there are three separate grounds for terminating the rights of an incarcerated parent: (1) when the parent will be in jail for a substantial period of time, (2) when the parent is in jail for certain types of crimes, or (3) when the court determines that TPR is in the child’s best interest. It should be noted that this originally required a showing of all three, but the “and” was changed to an “or” in 1999. This change created the only “best interests” TPR ground in Florida law. All other TPR grounds require a showing of some overt act or failure to act by the parent prior to the court considering the child’s best interests. When a parent is in jail, the child’s best interests alone can be the deciding factor, even when the reason and length of time the parent is in jail is unrelated to parenting or children (think tax evasion, lobstering out of season, civil disobedience, politically biased sentencing laws). The usual response is that getting arrested and convicted is the overt harmful act, but consider all the analogs to the alleged harm posed to children from a parents’ incarceration that we wouldn’t consider TPR appropriate for: hospitalization, living or working far away from the home, military service. It appears we’re doubling down on a disparate impact phenomenon instead of actually assessing harm.
Professor Anthony C. Musto has recently argued, in Up the Slippery Slope: The Need to Advise Criminal Defendants that Their Pleas Can Lead to Termination of Their Parental Rights, that failure of an attorney to advise a defendant of the risks of TPR should be ineffective assistance of counsel similar to failure to advise about immigration consequences. And many legal and social work scholars have argued that we should be promoting and supporting family connections during incarceration as part of the rehabilitative process. Isolating parents from their families and communities during incarceration increases the risk of recidivism upon release, which the negatively affects the families and communities the parents came from and return to.
Finally, the argument is often made that jails are simply no place for children. The fact that visiting a parent in a prison waiting area is not in the child’s best interests demands a change to the waiting area and conditions of confinement, not a termination of parental rights. DCF and DOC have some work to do. Both of the Florida cases listed above dealt with this fact: in one case the mother allegedly kept the child away from the incarcerated father, in the other case the state attempted to do the same. Both decisions were rightly looked upon with scrutiny.