People of the State of Illinois v. Detra W. (Amicus Brief)
In September 2004, the Brennan Center was a signatory on an amicus brief filed in the Supreme Court of Illinois that argued that a mother’s right to retain custody of her children should not be terminated permanently based on a history of incarceration.
In Brief – Illinois Circuit and Appellate courts found Detra Welch to be unfit to retain custody of her biological daughter based on her previous multiple incarcerations. In September of 2004, the Brennan Center co-filed an amicus curiae (or friend of the court brief) defending Ms. Welch’s right to remain a parent when she appealed the termination of her parental rights to the Supreme Court of Illinois. The Illinois Supreme Court upheld the lower courts’ decisions in a 2005 ruling.
Question Presented – The Brennan Center’s brief argued that in terminating Ms. Welch’s parental rights primarily because of her previous incarcerations, the Court failed to consider individualized circumstances, as required by the legislature, thus threatening the fundamental parental rights of the previously-incarcerated and undermining the state’s interest in post-conviction rehabilitation.
In Detail – In this case, the State alleged that Ms. Welch failed “to maintain a reasonable degree of interest, concern or responsibility” as to the welfare of her daughter, citing both parents’ repeated incarcerations as indications of neglect of parental responsibilities and as grounds for seeking termination of the parents’ rights in this case. An Illinois Circuit Court, siding with the State, ruled that both parents were unfit and terminated their custody. On appeal, an Illinois Appellate Court upheld the lower court’s ruling.
The Brennan Center was a signatory on an amicus brief case filed in September 2004, when the case was brought before the Supreme Court of Illinois on appeal. The brief argued that a mother’s right to retain custody of her children should not be terminated permanently based on a history of incarceration. Doing so would undermine the State’s interest in post-conviction rehabilitation and could “create a generation of legal orphans” by threatening parents’ fundamental rights. In its decision, the Supreme Court of Illinois upheld the ultimate termination of her parental rights based on her history of incarceration.
This case questioned the fundamental right of a parent to raise his or her child. Involuntary termination of parental rights is a severe and dire verdict, which should be administered sparingly and with full consideration of an individual’s circumstances. Custodial decisions that are based on one’s history of incarceration, and fail to account for significant progress and rehabilitation, are not accurate measures of parental fitness and have broad and detrimental societal implications. Regrettably, the Supreme Court of Illinois’ ruling will work only to discourage reentry for those already struggling to overcome difficult post-incarceration obstacles.
Chicago Legal Advocacy for Incarcerated Mothers, the Legal Assistance Foundation of Metropolitan Chicago, Loyola Childlaw Center of Loyola University School of Law, and Companions Journeying Together, Inc. authored this brief. The Brennan Center participated in an “of counsel” status.